Spolski General Contractor, Inc. v. Jett-Aire Corp. Aviation Management of Cent. Florida, Inc., JETT-AIRE
| Decision Date | 03 June 1994 |
| Docket Number | JETT-AIRE,No. 93-458,93-458 |
| Citation | 637 So.2d 968 |
| Parties | 19 Fla. L. Weekly D1223, 23 UCC Rep.Serv.2d 742 SPOLSKI GENERAL CONTRACTOR, INC., Appellant, v.CORP. AVIATION MANAGEMENT OF CENTRAL FLORIDA, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Margaret A. Wharton, Oviedo, for appellant.
Patrick C. Crowell, Orlando, for appellees, Benjamin Moore & Co., and Senkarik Glass & Paint Co., Inc.
No appearance for appellees, Jett-Aire Corp. Aviation Management of Central Florida, Inc.
Appellant Spolski General Contractor, Inc. ("Spolski") timely appeals a grant of final summary judgment and judgment on the pleadings for appellee Benjamin Moore & Co. ("Moore") and a grant of summary final judgment for appellee Senkarik Glass & Paint Co. ("Senkarik"). We affirm the final summary judgment and judgment on the pleadings as to Moore and reverse the final summary judgment as to Senkarik.
Spolski is a general contractor who entered into a contract to build an airport hangar and attached offices for Jett-Aire Corporate Aviation Management of Central Florida, Inc. ("Jett-Aire"). Spolski purchased Chex-Wear Modified Epoxy Enamel from Senkarik to paint the hangar floor. The paint was manufactured by Moore. Spolski had used this paint before on a similar project, called the Miracle Industries project, and had experienced no problems with it. Spolski consulted Senkarik regarding the use of this paint for the Miracle Industries project and Senkarik sent a representative from Moore to inspect the floor to ensure its surface was properly prepared for the paint to be applied. This consultation occurred more than one year before the Jett-Aire project. Spolski consulted Senkarik regarding the suitability of this paint for the Jett-Aire project after the contract already called for this paint. Senkarik indicated it knew of "no adversities" to its use. Spolski applied the paint using the same specifications prescribed in the Miracle Industries project, however, in the Miracle Industries project the concrete was allowed to cure 102 days before beginning the acid etching process to prepare the floor for painting and in the Jett-Aire project the concrete was allowed to cure 57 days before beginning this process. Within one year, the paint began peeling off the floor during normal use and when water was left standing on the floor.
Jett-Aire filed a complaint against Spolski for damages caused by the peeling paint. Spolski filed a third party complaint against Moore and Senkarik alleging breach of express warranties, breach of implied warranties of merchantability, breach of implied warranties of fitness and indemnification. Jett-Aire moved for summary judgment and Moore and Senkarik moved for judgment on the pleadings and for summary judgment. Several continuances were granted between the time the complaint was filed and the hearing on Moore and Senkarik's motions. At the hearing on these motions, Moore and Senkarik argued there was privity of contract between Spolski and Senkarik, but not Spolski and Moore. Moore and Senkarik also argued Spolski alleged nothing regarding any kind of agency between Spolski and Moore or Moore and Senkarik and made no allegations to evade the privity requirements. Spolski argued there was privity between Moore and Spolski, there were both express and implied warranties, there was evidence supporting an agency theory, there was no proof the paint was not properly applied and there was indemnity. The trial court granted judgment on the pleadings and final summary judgment as to Moore and final summary judgment as to Senkarik. Spolski appeals this order.
Spolski argues three issues on appeal. First, Spolski argues the judgment on the pleadings should not have been granted as to Moore and the final summary judgment should not have been granted as to Moore and Senkarik. To grant a judgment on the pleadings the trial court must find that, based upon the pleadings, the recipient is entitled to judgment as a matter of law. E.g., Farag v. Nat'l Databank Subscriptions, Inc., 448 So.2d 1098, 1100 (Fla. 2d DCA 1984). In order to grant a summary judgment, there must be no genuine issue of material fact and the recipient must be entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). The test for reversal of a summary judgment is whether issues of fact exist and the slightest doubt remains. Fletcher v. Petman Enter., Inc., 324 So.2d 135, 136 (Fla. 3d DCA 1975). Judgment on the pleadings and final summary judgment were properly granted for Moore because there was no sale from Moore to Spolski, no privity between Spolski and Moore, no contract between Spolski and Moore, no reliance by Spolski on any...
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