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General Property Construction Co. v. Empire Office, Inc.

United States District Court, S.D. Florida

September 4, 2019

General Property Construction Co., Plaintiff,
v.
Empire Office, Inc., Defendant.

          OMNIBUS ORDER

          Robert N. Scola, Jr. United States District Judge.

         This action involves a contract dispute on a construction project between a subcontractor General Property Construction Co. (“General Property”) and a sub-subcontractor Empire Office, Inc. (“Empire”). Now before the Court is Empire's motion for summary judgment (ECF. No. 48) and General Property's amended motion to strike Empire's filings in support of its motion for summary judgment (ECF No. 52). After careful review of the relevant record in this case, the Court denies both motions.

         The Court notes that since Empire filed its motion for summary judgment, General Property withdrew its claims for one-month lost wages and lost profits totaling $1, 732, 784.07. (ECF No. 57.) Empire's argument that General Property cannot recover lost profits is denied as moot, and General Property can no longer pursue those claims.

         1. Background

         This case concerns a contract dispute on a construction project called the Miami World Center Paramount, a luxury 57-story condominium complex. The general contractor and Empire, the subcontractor, agreed that Empire would perform a portion of the work. (ECF No. 42-10.)

         General Property and Empire were in the process of negotiating a written sub-subcontract that was never signed. (ECF Nos. 54 at ¶ 11; 42-7 at 84.) The sub-subcontract stated that General Property was to furnish construction labor and materials relating to the installation of the bathrooms for the Paramount project. (ECF No. 42-2.) No evidence in the record suggests that a final version of the sub-subcontract was ever signed. (ECF No. 42-7 at 86.) The parties agree, and the record supports, that the parties had some sort of oral agreement. (ECF Nos. 48 at ¶ 14; 55 at ¶ 14.) Empire contends that General Property agreed to adhere to its proposal, the agreed schedule of values, and the scope of work in exchange for payment. (ECF Nos. 48 at ¶ 14; 43-1 at ¶ 6.) General Property contends that the parties verbally agreed to the contents of the sub-subcontract even though it was never formally signed. (ECF Nos. 55 at ¶ 14; 42-7 at 101.)

         On October 2, 2017 General Property began working on the project. The general contractor considered at least some of General Property's work to be “unacceptable.” (ECF No. 42-6 at 12.) For example, the general contractor complained that the floor tiles “are not level and inconsistent” and that the wall tiles were not aligned properly. (ECF No. 42-6 at 12.) As a result, corrective work was needed. The shower wall and bathroom floor tiles needed to be re-installed with a full mud set because they were initially installed with “spot setting.” (ECF No. 42-6 at 16.)

         General Property submitted ten invoices to Empire between October 2, 2017 and March 21, 2018 for a total invoiced amount of $848, 983.91. (ECF No. 43-13 at No. 2.) Empire paid General Property $673, 776.92, and General Property executed releases for these payments through February 26, 2018. All that remain are two invoices: one from March 1, 2018 and another from March 21, 2018 totaling $186, 061.75. (ECF No. 42-13 at No. 10.)

         On March 23, 2018, Empire fired General Property from the project via email. (ECF No. 42-6 at 31.) No reason for the termination was given in the email. Id. As a result, General Property filed suit claiming that Empire breached their contract by wrongfully terminating it from the project. General Property completed 19.26% of the project before termination. (ECF No. 12-7 at 171.) General Property claims $186, 061.45, the total of the two outstanding invoices, and $17, 367.75 in unpaid retainage. (ECF No. 42-13 at No. 10.)[1] Empire counterclaimed against General Property for breach of contract and negligence.

         Empire's motion for summary judgment sets forth four arguments: (1) General Property did not substantially complete the sub-subcontract before it was removed from the project and thus cannot recover damages; (2) Empire complied with the contract by properly giving General Property notice of its breaches before termination; (3) consequential damages are not recoverable because General Property has no evidence of actual costs; and (4) General Property's claim to future payroll is baseless. (ECF No. 48.) Arguments three and four are moot because General Property withdrew its claim for lost profits and lost wages. (ECF No. 57.)

         In its response, General Property argues that (1) Empire's documents filed in support of its motion for summary judgment should be stricken; (2) Empire's failure to raise waiver of consequential damages as an affirmative defense means that it cannot be argued now; (3) there was an oral contract; (4) General Property is entitled to lost profits because they need not be proven with absolute exactness. (ECF No. 56.) General Property additionally filed an amended motion to strike re-stating argument one. (ECF No. 52.) As described above, arguments two and four are moot because General Property withdrew those damages claims. (ECF. No. 57.)

         2. Legal Standard

         Under Federal Rule of Civil Procedure 56, “summary judgment is appropriate where there ‘is no genuine issue as to any material fact' and the moving party is ‘entitled to a judgment as a matter of law.'” Alabama v. North Carolina, 130 S.Ct. 2295, 2308 (2010) (quoting Fed.R.Civ.P. 56(a)). “An issue of fact is ‘material' if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).

         Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249; Morrison v. Amway Corp.,323 F.3d 920, ...


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