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Engineer and Negligence

“Joseph Rickett, P. E. v. Florida Board of Professional Engineers (DBPR), Case No. 12-1202RX, Final Order filed on March 1, 2013. Held that petitioner did not have standing to challenge Rules 61G15-19.001(4), 61G15-30-34 and 61G15-36 as being invalid; and, (2) the prosecution of negligence in the practice of engineering, a violation of s. 471.033(1)(g), F. S., outside the framework of s. 553.781, F. S., as an unpromulgated rule. A Notice of Appeal was filed on April 9, 2013 in the First District Court of Appeal.”  (from RPPTL Construction Regulation Subcommittee).

“Roy Jossfolk, v. United Property & Casualty Insurance Company, 38 Fla. L. Weekly D649a, Case No. 4D12-443, filed March 20, 2013.  Summary judgment for insurer for denial of “Ordinance and Law” coverage for hurricane roof damages was reversed based on such coverage not being originally appraised, but subsequently “incurred” (Ceballa v. Citizens Property Insurance Corp., 967 So. 2d 811 (Fla. 2007) when city ordinance required replacement of entire roof where more than 25% had be replaced.” (from RPPTL Construction Regulation Subcommittee).

“Frank Cleaton, P. E. v. Florida Board of Professional Engineers, DOAH Case No 12-3640F: In an extensive (51 pages) Final Order dated April 24, 2013, attorney fees and costs sought pursuant to s. 57.111, F. S. (2012) were denied. Although the licensee was found to be a “small business” and the “prevailing party” in an administrative disciplinary action that was dismissed by the agency after filing, and the fees were determined to be reasonable, the ALJ found that the board’s Probable Cause Panel was “substantially justified” at the time probable cause was found, and that determination was made, in part, on the written opinion of an expert consultant to the board.” (from RPPTL Construction Regulation Subcommittee).

“Mike Cobb v. David Durando and Jane Durando, husband and wife,38 Fla. L. Weekly D847a, Case No. 2D12-1991, issued April 17, 2013: After prevailing in a bench trial against their roofing contractor for breach of contract, the homeowners sought attorney fees pursuant to section 768.79 based on a single demand for judgment. The award of fees was reversed based on the requirements of Rule 1.442, FRCP, because the demand for judgment failed to “state the amount…attributable to each party,” as required by the rule. A dissent by Judge Alterbernd argued, in part, that only the husband had signed the roofing contract, and that application of the rule to a single cause of action which he could have brought in his name alone was “seems to have achieved form over substance.” (from RPPTL Construction Regulation Subcommittee).

“Plantation Key Office Park, LLLP et. al. v. Pass International, Inc., et. al., 38 Fla. L. Weekly D736a, Case No. 4D12-169 and 4D12-199, issued April 3, 2013: Following a fire during construction, owner sued contractor and subcontractors for reformation (as well as breach of contract, negligence and statutory violations). On the issue of reformation, the trial court granted summary judgment against owner on the issue of whether A201 (the general conditions that prohibit consequential damages) was incorporated in the A111 contract signed by the parties. Based on conflicting testimony of the parties on this issue, the summary judgment was reversed based on the trial court’s inability to determine credibility of the witnesses at that point. Citing its own decision in the analogous case of Resort of Indian Spring, Inc., v. Indian Spring County Club, Inc., 747 So. 2d 974 (Fla. 4th DCA 1999), the appellate court found the summary judgment to be improper.” (from RPPTL Construction Regulation Subcommittee).

“Marble Unlimited, Inc. v. Weston Real Estate Investment Corporation, 38 Fla. L. Weekly D686b, Case No. 4D11-3113, issued March 27, 2013: Dismissal of contractor’s foreclosure of construction lien for failure to served a notice to owner was reversed due to the common identity of the corporate owner (following a transfer of title from one related entity to another) based on Aetna Cas. & Sur. Co. v. Buck, 594 So. 2d 280 (Fla. 1992).” (from RPPTL Construction Regulation Subcommittee).

“Carriage Hills Condominium, Inc., v. JBH Roofing & Construction, Inc., 38 Fl. L. Weekly D643a, Case No. 4D11-2251, filed on March 20, 2013. Summary judgment in favor of roofing contractor for breach of a “full scope contingency contract” (in which payments were to be approved and paid by insurer), based soled on the deposition of the defendant’s corporate representative, was reversed due to the improper use of Rule 1.310(b)(6) regarding notice of deposing a corporation representative, and the trial court’s improper striking of opposing affidavits as contradicting that deposition. This opinion details the correct use of the rule, and the strict adherence required to bind the corporate entity. In this case, the notice of deposition was not compliant with the rule because it failed to cite to the rule and required production of “the person with the most knowledge,” while failing to specify the issues to be addressed rather than the “over broad” reference to the general allegation pled; in addition, the deposition was not properly conducted due to the corporate representative’s statements of personal beliefs and opinions that exceeded the scope of the deposition notice.  This case also set forth four (4) criteria a trial court must find before striking testimony on the basis that it repudiates or contradicts that that given by a corporate representative pursuant to this rule.” (from RPPTL Construction Regulation Subcommittee).

Trent Cotney recently attended the quarterly board and committee meetings for the Florida Roofing, Sheet Metal & Air Conditioning Contractors Association (FRSA) in Gainesville, Florida where he attended the Public Relations Committee, the Affiliate Council and Board of Directors meetings.

“Suzlon Energy, A/S v. Ventus De Nicaragua, S. A., 38 Fla. L. Weekly D304a, Case No. 3D11-1087, filed February 6, 2013. An order confirming an arbitration award in a dispute over sales commissions for wind turbines was reversed due to the lack of authority by the buyer’s corporate representative to initiate arbitration. While the contract contained an arbitration provision, and the tribunal found that it had jurisdiction, the court found that the arbitrators had “exceeded their powers” under s. 682.13(1)(c) as a basis for vacating the arbitration award.” (from RPPTL Construction Regulation Subcommittee).

Cotney Construction Law sponsored the Rough Riders at its fourth annual Rough Riders Charity Sporting Clay Tournament on April 20, 2013.  Rough Riders is a dynamic organization and supports many charities ranging from Special Olympics to the Make a Wish Foundation to the Ronald McDonald House. The event was held at Tampa Bay Sporting Clays.