final until disposition of timely filed motion for rehearing.
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 13-30482, Bronwyn C. Miller, Judge.
Law, and Christopher J. Perez-Gurri (Fort Lauderdale); Samson
Appellate Law, and Daniel M. Samson, for appellant.
Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A.
Valdez and Karen M. Shimonsky (Tampa), for appellee M2G2
LOGUE, SCALES, and LUCK, JJ.
Perez-Gurri Corporation (the General Contractor) appeals a
trial court order dismissing its professional malpractice
action and entering summary judgment in favor of M2G2
Architects, LLC. Because an issue of material fact remains as
to whether M2G2 Architects provided services for a
construction project the General Contractor undertook with
the City of Miami, and because the General Contractor's
claim against M2G2 Architects was not contractually barred,
General Contractor is a Florida construction company that
successfully bid on, and became the general contractor for, a
City of Miami renovation project for the Caribbean
Marketplace in Little Haiti. The City's prime consultant
on the project subcontracted with Don McLeod and McLeod
Architectural Group to prepare design documents for the
renovation. In May 2013, Don McLeod established a new firm,
M2G2 Architects, LLC. When construction on the renovation
project was delayed, the General Contractor brought an action
against multiple architects, engineers, and consultants,
including M2G2 Architects.
General Contractor alleged in its fourth amended complaint
that M2G2 Architects committed professional malpractice that
delayed the construction. M2G2 Architects moved for summary
judgment on the basis that it played no role in the project.
It also argued that the General Contractor's claim
against it was contractually barred by a "No Damages for
Delay" clause in the contract between the General
Contractor and the City of Miami.
trial court granted M2G2 Architects' motion for summary
judgment. It found that "the record evidence
conclusively establishes that no services were rendered by
M2G2 in conjunction with the project." And it further
concluded that even if M2G2 Architects played a role in the
project, its principal, Don McLeod, was the architect of
record and a representative of the City, and the no delay
damages clause precluded any claim for delay damages against
the City and its representatives. This appeal followed.
reverse the trial court's entry of summary judgment
entered in favor of M2G2 Architects for two reasons. First,
an issue of material fact remains as to whether M2G2
Architects was involved in the renovation project. And
second, the contract between the General Contractor and the
City does not insulate M2G2 Architects from liability.
judgment "is designed to test the sufficiency of the
evidence to determine if there is sufficient evidence at
issue to justify a trial or formal hearing on the issues
raised in the pleadings." The Fla. Bar v.
Greene, 926 So.2d 1195, 1200 (Fla. 2006). "A party
should not be put to the expense of going through a trial,
where the only possible result will be a directed
verdict." Perez-Rios v. Graham Companies, 183
So.3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin
Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105,
1108 (Fla. 4th DCA 2000)). Because summary judgment tests the
sufficiency of the evidence to justify a trial, it "is
proper only if, taking the evidence and inferences in the
light most favorable to the non-moving party, and assuming
the jury would resolve all such factual disputes and
inferences favorably to the non-moving party, the non-moving
party still could not prevail at trial as a matter of
law." Moradiellos v. Gerelco Traffic Controls,
Inc., 176 So.3d 329, 334-35 (Fla. 3d DCA 2015). "At
both the trial and appellate level, all evidence and
inferences from the evidence must be taken in the light most
favorable to the non-moving party." Id. at 334.
This court reviews de novo a trial court's ruling on a
motion for summary judgment. Volusia Cty. v. Aberdeen at
Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).
there remains a genuine issue of material fact as to whether
M2G2 Architects rendered services on the renovation project.
While there may be evidence that M2G2 Architects did not
provide services on the project, there is also ample record
evidence that it did. Among this evidence is a January 23,
2014 email from Don McLeod, advising that his company McLeod
Architectural Group was no longer in business, and stating,
"[a]ll services provided related to the Caribbean
Marketplace since mid-summer have been through M2G2
Architects LLC." M2G2 Architects also demanded payment
for services rendered on the project from July 15, 2013,
through December 30, 2013. And a January 29, 2014 email from
another principal of M2G2 Architects to the City demanded
payment and stated that M2G2 Architects had been providing
services on the project since July 2013. Further, M2G2
Architects' website indicated that it was "honored
to have played a role in ensuring that this iconic community
venue [the Caribbean Marketplace] is functioning again."
A jury or factfinder could reasonably infer from these
statements by M2G2 Architects or its principals that services
to the project were provided by M2G2 Architects.
Architects, however, contends the deposition testimony of its
principals-who provided an explanation for those
communications-is so persuasive as to conclusively establish
that M2G2 Architects was not involved in the project at
issue. But a motion for summary judgment is not a trial by
affidavit or deposition. Summary judgment is not intended to
weigh and resolve genuine issues of material fact, but only
identify whether such issues exist. If there is disputed
evidence on a material issue of fact, summary judgment must
be denied and the issue submitted to the trier of fact. Here,
the documentary evidence, viewed in the light most ...