SDI Quarry v. Gateway Estates Park Condo. Ass'n

• Decision Date: 22 June 2018
• Docket Number: No. 1D17–1086,1D17–1086
• Parties: SDI QUARRY a/k/a Atlantic Civil, Inc., Appellant, v. GATEWAY ESTATES PARK CONDOMINIUM ASSOCIATION, Appellee.
• Court: Florida District Court of Appeals

249 So.3d 1287

SDI QUARRY a/k/a Atlantic Civil, Inc., Appellant,

v.GATEWAY ESTATES PARK CONDOMINIUM ASSOCIATION, Appellee.

No. 1D17–1086

District Court of Appeal of Florida, First District.

June 22, 2018

Rehearing Denied August 7, 2018

Diane H. Tutt of Conroy Simberg, Hollywood, for Appellant.

Dale C. Glassford of Dale C. Glassford, P.A., Miami, for Appellee.

Jay, J.

Appellant seeks review of a final administrative order awarding compensatory damages to Appellee on the ground that blasting activities at Appellant's quarry caused damage to the shore of Appellee's lake. Appellant asserts that the order should be reversed because (1) Appellee's petition for damages was time-barred under section 552.40(1), Florida Statutes (2015) ; and (2) Appellee failed to prove that Appellant's blasting activities damaged Appellee's lake. We disagree and affirm.

I.

The administrative law judge's final order outlined the relevant facts of this case, many of which are undisputed and are recounted here. Specifically, Appellee is a condominium association that oversees a mobile home community consisting of 220 mobile homes and two vacant lots. Appellee holds title to a number of common elements, including a man-made lake—the South Lake—that was excavated sometime before 1975 when Appellee was organized.

In 2005, Appellant began blasting at three mines near the South Lake, the closest being located approximately 7000 feet from Appellee's property. This blasting continued without significant interruption from that time. Appellant performed twenty-five blasts between July 1, 2015, and October 17, 2016. Based on this figure, the administrative law judge drew the reasonable inference that the number of historical blasts affecting Appellee's property was in the range of 200 to 250.

In 2011, about five or six years after Appellee began its blasting activities, the shore of the South Lake began to destabilize, and saturated soil at the edge of the lake began to slough and slump into the water. This opened up fissures in the slope, which undermined the upward bank. In time, holes appeared in the bank, and pieces of the once level surface fell off, resulting in a narrowing of the horizontal area from roughly five feet to about a foot and a half. Residents observed the ground falling into the water in close temporal proximity to the blasting.

In late 2014 or early 2015, Appellee retained James McNew, the president and owner of a consulting business called Upper Keys Consulting, to give recommendations concerning restoration of the lake bank. On July 18, 2015, Upper Keys Consulting prepared a proposal in the amount of $840,000.00 for restoring the shore of the South Lake and installing preventive devices to protect the shoreline against erosion from further blasting.

On February 22, 2016, Appellee filed a petition pursuant to the Florida Construction Materials Mining Activities Administrative Recovery Act, alleging that Appellant had caused damage to the South Lake through the use of explosives in connection with construction materials mining. Appellee subsequently moved to amend the petition to allege that it was seeking damages pursuant to the proposal from Upper Keys Consulting dated July 18, 2015. Appellant opposed the motion on the ground that the alleged damages were based on an estimate prepared more than 180 days before the filing of the original petition, rendering the petition untimely under section 552.40(1), which required the petition to be filed within 180 days "after the occurrence of the alleged damage." The administrative law judge granted the motion to amend without prejudice to Appellant's right to present evidence at the final hearing that the amended petition was untimely.

At the final hearing, the administrative law judge addressed Appellant's motion to exclude Appellee's proposed expert, James McNew, on the ground that he was not competent to testify because he had no training or significant education in seismology, geotechnical engineering, or geology, other than one class taken in college in the early 1970s. The administrative law judge preliminarily denied the motion without prejudice to revisiting the issue when McNew was called as a witness.

Over Appellant's renewed objection, McNew was allowed to testify as an expert on causation. During direct examination, McNew stated that he consulted extensively with his colleague, Jack Altoff; that they produced a set of notes based on their conversations and extensive research of the literature; and that these conversations formed the basis of his opinion as to the causes of the slope stability failures around the lake. The administrative law judge allowed McNew to testify despite Appellant's objection that McNew "admitted that some of his opinion was going to be based on what another engineer told him."

McNew opined that vibrations from Appellant's blasting caused the problems at Appellee's lake. Specifically, he explained that these vibrations acted upon the soft layer of silt atop the shore and bank of the South Lake, causing the liquefaction of this saturated soil extending up to eight feet beneath the surface. This led to the compaction of the loose, wet soil around the edges of the lake, opening up cracks and holes and weakening the slope, which began to erode and fail. McNew conceded that there were no legal standards in Florida or elsewhere establishing thresholds above which lakeshore slope instability would be expected under the stress of blast-related vibrations. In formulating his opinion, McNew stated that he used Transit Authority Guidelines rather than mining guidelines because the transit guidelines provided a more realistic standard where the damages were not to buildings. McNew also ruled out other possible causes such as earthquakes or heavy truck hauling near the lake.

During Appellant's case, Appellant presented expert testimony from two Florida–licensed professional engineers, Steven Black and Eric Stern, who opined that erosion of the lakeshore was caused by the action of wind, waves, and rainwater percolating down and through the ground and pulling the silt from the bank. Both witnesses concluded that Appellant's blasting activities were not close enough to Appellee's property to impart sufficient energy to affect the soil around the South Lake. Black also ruled out heavy truck traffic as a cause, but conceded that heavy truck traffic could affect the silt layer of a lakeshore over a continuous period of time.

Appellant also presented expert testimony from Jeffrey Straw, who opined that soil consolidation would not occur at the "peak particle velocities" or PPV levels likely to have occurred at the lakeshore as a result of Appellant's blasting. Straw disagreed with McNew's opinion that mining guidelines were not applicable in this case.

In his final order, the administrative law judge found James McNew's opinion on causation to be more persuasive than the competing view offered by Appellant's experts. In doing so, he noted that Steven Black's categorical opinion that blasting could not be a cause of the damage to Appellee's lake was undercut by his concession that heavy truck traffic could affect the silt layer of a lakeshore over a continuous period of time. The administrative law judge also found that the circumstantial evidence supported McNew's opinion. Specifically, he noted that "the South Lake had existed for at least 35 years without experiencing the deterioration of the shore and bank that became noticeable within just five or six years after the start of the blasting, and which worsened over time as the blasting has continued." He also noted "the persuasive evidence that visible damage occurs in the wake of individual blasts."

Although the administrative law judge credited Steven Black's testimony to the extent it supported a finding that erosion from wind, wave, and rainwater was a natural cause of some of the bank erosion at the South Lake, he found that Appellant's blasting combined with natural forces and constituted a legal cause of the claimed property damage. He also accepted Jeff Straw's testimony concerning the PPV levels likely to have occurred at the lakeshore as a result of Appellant's blasting, but rejected Straw's opinion that soil consolidation would not occur at those levels, concluding that this testimony was unpersuasive because Straw merely conveyed the opinions of the authors of scientific literature that Straw had read; authoritative literature was supposed to be used on cross-examination, not to bolster Straw's opinion testimony; and Straw's testimony was inconsistent with Black's testimony that ground-borne vibration from heavy trucks could cause soil erosion at the lakeshore.

Finding that blasting was an ultra-hazardous activity for which strict liability was imposed, the administrative law judge concluded that Appellee was not required to prove that Appellant was negligent or that Appellant's blasting was the sole cause of Appellee's damage. He awarded $840,000.00 in damages as requested by Appellee based on the proposal from Upper Keys Consulting dated July 18, 2015, to restore and protect the shoreline against erosion from further basting. He rejected Appellant's claim that Appellee's petition was untimely, explaining that "as a matter of fact, the property damage at issue is present and continuing; the harm to the lakeshore is cumulative, indivisible, and inseparable." This appeal followed.

II.

In 2003, the Florida Legislature enacted sections 552.32 – 552.44, Florida Statutes, collectively entitled the Florida Construction Materials Mining Activities Administrative Recovery Act. Ch. 2003–62, Laws of Fla. Section 552.36(1), Florida Statutes (2015), provides that "[t]he Division of Administrative Hearings has exclusive jurisdiction over all claims for damages to real or personal property caused by the use of explosives in connection with construction materials mining activities." In addition, section 552.40(1), Florida Statutes (2015...