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Perez-Gurri Corp. v. McLeod

Florida Court of Appeals, Third District

November 22, 2017

Perez-Gurri Corporation, etc., Appellant,
v.
Don McLeod, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeals from the Circuit Court for Miami-Dade County Lower Tribunal No. 13-30482, Bronwyn C. Miller, Judge.

          GPG 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 Architects, LLC.

          Before LOGUE, SCALES, and LUCK, JJ.

          LOGUE, J.

          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, we reverse.

         The 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.

         The 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.

         The 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.

         We 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.

         Summary 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).

         Here 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.

         M2G2 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 ...


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