US Project Management, Inc. v. PARC ROYALE EAST DEV., INC.

• Decision Date: 29 October 2003
• Docket Number: No. 4D03-119.,4D03-119.
• Citation: 861 So.2d 74
• Parties: U.S. PROJECT MANAGEMENT, INC., a Florida corporation, Appellant, v. PARC ROYALE EAST DEVELOPMENT, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

861 So.2d 74

U.S. PROJECT MANAGEMENT, INC., a Florida corporation, Appellant, v. PARC ROYALE EAST DEVELOPMENT, INC., a Florida corporation, Appellee.

No. 4D03-119.

District Court of Appeal of Florida, Fourth District.

October 29, 2003.

Rehearing Denied December 31, 2003.

James D. Ryan and Lauren J. Schindler of Ryan & Ryan, Attorneys, P.A., North Palm Beach, for appellant.

Daniel H. Coultoff and Catherine J. Livingston of Gronek & Latham, LLP, Orlando, for appellee.

POLEN, J.

Parc Royale East Development, Inc., a condominium developer, retained U.S. Project Management, Inc., a real estate development consulting firm, under a Consulting Agreement in 1994 for its Ocean Royale condominium project in Juno Beach, Florida. One of the contract's provisions obligated Parc Royale to pay U.S. Project a monthly fee. Another provision required Parc Royale to pay an incentive fee based on a specified scale after all units had been sold, provided a profit was realized. U.S. Project allegedly provided its services from May 15, 1994 through July 14, 1997, at which time it was excused from its consulting duties under the contract because Parc Royale refused to pay U.S. Project its monthly fees for any of the services rendered in 1997. Parc Royale's alleged position was that no payments were due because the contract no longer existed.

In 1997, U.S. Project filed suit for breach of contract, specifically for failure to pay the monthly fee, seeking an award for all of its damages flowing from its expectation under the Consulting Agreement. The expectation under the Consulting Agreement was U.S. Project's monthly fee due and owing, plus a percentage of the future profits due under the incentive fee provision which would have become due after a reasonable time upon the sale of the last residential unit. At the time of this prior litigation, the condominium was not completed and the units had not all been sold. At trial in the prior litigation, the lower court found that

[U.S. Project] has not shown, by the greater weight of the evidence, that there was a breach of the contract nor causation of damages which meet the appropriate standard for recovering future profits where a contract has not been fully performed. The law requires that damages for prospective profits be shown with reasonable certainty.

U.S. Project appealed this final judgment, and this Court affirmed without issuing an opinion on October 4, 2000. U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 773 So.2d 1163 (Fla. 4th DCA 2000).

U.S. Project concedes that it has not performed any work under the Consulting Agreement since before the filing of the prior litigation. Notwithstanding, U.S. Project claims that the incentive fee became presently due under the Consulting Agreement, since all units in the Ocean Royale development were sold and a profit was realized. Thereafter, U.S. Project filed suit for breach of contract on August 1, 2002, because Parc Royale refused to pay the incentive fee that was now currently due. The case was transferred to the same trial judge that presided over the prior litigation. The trial court granted a motion to dismiss stating:

this lawsuit is barred by res judicata, that there is no new conduct which would be the breach other than now we have the sales and now we think that the money should be paid. The issue was raised in the first suit, it was decided in favor of [Parc Royale] at that time, and there was nothing said here that convinces the court that it's in any way a separate and distinct cause of action. I think that the principles of res judicata preclude the lawsuit on its face. The matter of incentive payments was raised, was considered, and was determined.

Whether a complaint should be dismissed is a question of law. "To rule on a motion to dismiss, a court's gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true." Alevizos v. John D. and Catherine T. Mac-Arthur Found., 764 So.2d 8, 9 (Fla. 4th DCA 1999). The appropriate standard of review on appeal for a motion to dismiss is de novo. See K.W. Brown and Co. v. McCutchen, 819 So.2d 977 (Fla. 4th DCA 2002). Generally, defenses such as res judicata are not properly considered on a motion to dismiss. See, e.g., Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000)(citing United Servs. Auto. Ass'n v. Selz, 637 So.2d 320 (Fla. 4th DCA 1994)). There is, however, an exception to this general prohibition when the face of the complaint is itself sufficient to demonstrate the existence of the defense. See, e.g., Ramos v. Mast, 789 So.2d 1226, 1227 (Fla. 4th DCA 2001).

"In order for a final judgment to bar further litigation based upon principles of res judicata the judgment must reflect 1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action, and 4) identity of the quality...