final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No.
A. Sweetapple and Berkley S. Vitale of Sweetapple, Broeker
& Varkas, PL, Boca Raton, for appellant.
Patrick G. Brugger and Michael Jay Rune II of Shutts &
Bowen, LLP, Miami, for appellee Skyline Steel, LLC.
BK Marine Construction, Inc. ("BKM") appeals the
trial court's final summary judgment order in favor of
appellee Skyline Steel, LLC ("SKY"). The trial
court found that under the Rental Contract for Steel Sheet
Piling ("Rental Contract"), BKM owed SKY a total
sum of $776, 853.27 including accrued interest. On appeal,
BKM argues the trial court improperly granted summary
judgment because the court granted relief greater than that
pled in the amended complaint, and because genuine issues of
material fact remained as to the amount of damages awarded.
Finding the second argument meritorious, we reverse and
remand for further proceedings consistent with this opinion.
a Florida construction company that regularly used steel
sheet pilings for its construction projects, including a
large endeavor called the Interstate 595 Project ("I-595
Project"). To complete the I-595 Project, BKM acquired
steel sheet pilings from SKY, with which BKM had a business
relationship spanning over twenty-five years. In April 2011,
BKM began receiving invoices from SKY pertaining to the I-595
Project. Two months later, on June 2, 2011, BKM and
SKY formally entered into the Rental Contract in which SKY
agreed to rent steel sheet pilings to BKM in exchange for
payments upon receipt of periodic invoices. The Rental
Contract specifically referred to project "I-595, 3rd
Section" and stated the agreement would become binding
upon acceptance and execution of the contract or when
shipments began. The Rental Contract also listed the monthly
prices and specifications for steel sheet pilings, but it did
not state a specific amount that would be owed by BKM to SKY.
BKM continued placing orders and receiving invoices from SKY
through July 2012.
year after the creation of the Rental Contract, BKM notified
SKY that it was behind on paying several invoices and
outlined a plan to pay the outstanding balance of "$500,
000 ( or -)." Nearly one year later, SKY filed a
complaint against BKM, alleging, in pertinent part, breach of
contract and unjust enrichment. In response, BKM moved to
dismiss the complaint on the grounds that "without
copies of the exhibits being attached to the pleading, "
BKM was unable to respond to the complaint, and SKY failed to
appropriately state a cause of action. SKY then amended its
complaint and attached the Rental Contract, but did not
attach any other contracts nor any invoices. BKM subsequently
filed its answer asserting three affirmative defenses: (1)
SKY's complaint failed to state a cause of action; (2)
BKM had already paid the outstanding balance owed under the
contract; and (3) SKY could not pursue a claim in equity
(unjust enrichment), as there was an enforceable contract.
ultimately moved for summary judgment. It explained that no
issues of material fact remained because BKM signed the
Rental Contract, SKY delivered the ordered materials, and BKM
failed to pay the full amount owed under the invoices;
therefore, SKY argued, it met all of the requisite elements
of the breach of contract claim. SKY attached several
documents to its motion. First, it attached an affidavit of
indebtedness by its Chief Financial Officer, who explained
that, "[b]eginning on May 10, 2011, Skyline delivered
invoices to BKM under the Agreement totaling $669, 583.93,
" and that BKM admitted in a letter that it owed
"$500, 000 ( or -)." The CFO attached the letter
to her affidavit. Second, SKY attached a multitude of
invoices dating from April 2011 through July 2012 detailing
the monthly rental agreements.
response, BKM argued there remained genuine issues of
material fact, and filed a deposition transcript of one of
SKY's corporate representatives, who appeared to be the
employee at SKY most familiar with the present lawsuit. The
representative testified that he knew the I-595 Project had
multiple sections,  but he did not know which invoices
pertained to which section. To figure that out, he mentioned
he would have to see the installation records from the
general contractors. He also explained how he did not know
whether SKY was owed more than $15, 000 under the Rental
Contract (for "I-595, 3rd Section") attached to the
trial court granted SKY's motion for summary judgment,
awarding what it deemed to be the unpaid principal and
interest due on the Rental Contract, a total of $776, 853.27.
BKM timely appealed this final summary judgment order.
standard of review for an order granting summary judgment is
de novo." Int'l Christian Fellowship, Inc. v.
Vinh on Prop., Inc., 954 So.2d 1214, 1215 (Fla. 4th DCA
2007) (quoting 5th Ave. Real Estate Dev., Inc. v. Aeacus
Real Estate Ltd. P'ship, 876 So.2d 1220, 1221 (Fla.
4th DCA 2004)). "Summary judgment is proper if there is
no genuine issue of material fact and if the moving party is
entitled to a judgment as a matter of law." Id.
(quoting Volusia Cty. v. Aberdeen at Ormond Beach,
L.P., 760 So.2d 126, 130 (Fla. 2000)). On this first
requirement, "[i]f the evidence raises any issue of
material fact, if it is conflicting, if it will permit
different reasonable inferences, or if it tends to prove the
issues, it should be submitted to the jury as a ...