# Sunrise of Coral Gables PropCo, LLC v. Current Builders,Inc.

> District Court, S.D. Florida · October 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10122561

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10122561

## How later opinions describe it (automated extraction)

- finding that “[a] provision is not ambiguous simply because it is complex or requires analysis”
- noting that district court has “considerable discretion” in determining whether exclusion is proper”
- finding that “a true ambiguity does not exist merely because a contract can possibly be interpreted in more than one manner”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:22-CV-21456-MORENO/GOODMAN
SUNRISE OF CORAL GABLES PROPCO, LLC,
Plaintiff,
v.
CURRENT BUILDERS, INC.,

Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION IN LIMINE
In this breach of contract case, Plaintiff Sunrise of Coral Gables Propco, LLC

(“Plaintiff”) filed a motion in limine to prevent Current Builders Inc. (“Defendant”) "from
offering evidence or argument regarding: (1) alleged 'construction industry'
understandings, including alleged understandings regarding the meaning of the word
'Work'; (2) 'the date the building permit was issued’; and (3) Defendant's claim that

Plaintiff breached the Agreement." [ECF No. 43 (“the Motion”)]. United States
District Judge Federico A. Moreno referred to the Undersigned any and all pretrial
matters. [ECF No. 40].1 Defendant filed a response [ECF No. 49], and Plaintiff filed an

optional reply [ECF No. 55].
1 Judge Moreno’s referral Order specifically requires the Undersigned's ruling to be
consistent with 28 U.S.C. § 636(b)(1)(A) and Rule 1(c) of the Local Magistrate Judge Rules,
both of which apply to non-dispositive motions. This, in turn, means that the Undersigned
needs to issue an Order, rather than a Report and Recommendations (which would be for
For the reasons discussed below, the Undersigned grants in part and denies in part
Plaintiff’s motion.
I. Factual Background
Plaintiff owns a six-story assisted living facility. [ECF No. 20]. As the owner of the

facility, Plaintiff entered into a $32,570,188.00 Guaranteed Maximum Price Construction
Agreement.2 The Agreement set forth the parties' respective rights and obligations,
including claim and dispute procedures. In it, Defendant agreed that in the event of a

dispute between the parties, it would continue working on the project subject to its right to
submit a claim.
The Agreement contemplated a Limited Notice to Proceed in June 2021 and a full

Notice to Proceed in December 2021. Following the Limited Notice, Plaintiff alleges,
Defendant failed to timely pursue subcontractor and vendor awards. In December 2021,
Plaintiff did not issue the Notice to Proceed because of the delay in receiving the necessary
building permit from the City of Coral Gables.

The following month, Defendant sent Plaintiff a letter regarding escalating costs on
the project, asking for an additional $2.5 million in a Change Order. After some initial
discussions about its request and after Plaintiff responded to the request with a letter

requesting additional information about the proposed increase, Defendant terminated the
Agreement (without responding to the letter asking for an explanation about the Change
Order request).
Plaintiff claims that Defendant unlawfully terminated the Agreement on February 2,
2022, alleging that Defendant “abruptly changed its approach and terminated the

Agreement and abandoned the project on February 2, 2022, arguing for the very first time
that the entire Work had been suspended since October 2, 2021. SOF ¶¶ 38-39.” [ECF No.
28-2, p. 7].3

On February 8, 2022, Plaintiff issued a seven-day notice to cure, as set forth in the
Agreement. Defendant failed to cure and did not return to work on the project.
Approximately a week later, Plaintiff terminated Defendant for cause. In July 2022, Plaintiff

entered into a subsequent agreement with a replacement contractor, Winmar.
II. Legal Standards and Analysis
Plaintiff's Motion requests three things: (1) that Defendant should be excluded from
offering evidence regarding alleged construction industry understandings; (2) that

Defendant should be excluded from offering evidence regarding the date of the building
permit's issuance; and (3) that Defendant should be excluded from alleging that Plaintiff

3 ECF No. 28-2 is the memorandum Plaintiff filed in support of its Motion for Partial
Summary Judgment, which is pending. The Undersigned needed to rule on the instant
motion in limine before ruling on Plaintiff’s summary judgment motion (and before ruling
breached the agreement. [ECF No. 43]. The Court must first determine the applicable law
before beginning its analysis of Plaintiff's requests.
A federal court sitting in diversity “appl[ies] state substantive law and federal
procedural law.” Hanna v. Plumer, 380 U.S. 460, 465, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965). In

cases involving contracts, "Florida courts will first look to any choice-of-law provision in a
contract or will otherwise apply the law of the state where the contract was made." ECB
USA, Inc. v. Chubb Ins. Co. of New Jersey, 587 F. Supp. 3d 1205, 1210–11 (S.D. Fla. 2021) (citing

Fioretti v. Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1235 (11th Cir. 1995) (“When resolving
conflict-of-laws issues in contract actions, the Florida Supreme Court has unambiguously
indicated its intent to reject the more modern (and flexible) ‘significant contacts’ analysis . .

. choosing instead to adhere to the traditional rule of lex loci contractus.”); see also Clarendon
Am. Ins. Co. v. Miami River Club, Inc., 417 F. Supp. 2d 1309, 1317 (S.D. Fla. 2006)).
Here, § 4.4.3 of the General Conditions of the Contract (entitled “Governing Law and
Venue”) states that the "substantive and procedural laws of the State of Florida shall apply

in all respects to any and all disputes arising from or relating to interpretation or
performance of this Contract, except as otherwise specifically provided herein." [ECF No 43-
2, p. 46]. Therefore, Florida law controls the Court's analysis. See IAG Engine Ctr. Corp. v.

Cagney Glob. Logistics Inc., 501 F. Supp. 3d 1287, 1296 (S.D. Fla. 2020) (Ruiz, J.) (holding that
Florida law governed an assignment pursuant to the applicable choice-of-law provision).
A. Whether Defendant Should be Excluded from Offering Evidence Regarding
Alleged “Construction Industry” Understandings
Plaintiff notes that Defendant must justify its "unilateral termination of the
Agreement" by, among other requirements, establishing that the "entire Work" was
suspended for 120 days before February 2, 2022. [ECF No. 43, p. 3]. Plaintiff contends that
Defendant's argument over the meaning behind the term "Work" in the Agreement is an

effort "to avoid the inconvenient fact that [Defendant]" in fact performed work under the
Agreement during those 120 days. Defendant's CEO, Michael Taylor, provided an affidavit
that Defendant used as support for its Motion for Summary Judgment. [ECF No. 29-2].

Likewise, Plaintiff argues, in its Reply, that Taylor’s “[p]roposed testimony is also a
transparent attempt to distract from the express definition of the term “Work” under the
Agreement.” [ECF No. 55, p. 5].
Plaintiff seeks to exclude Taylor's testimony because, it argues: (1) the affidavit is

"undisclosed expert testimony"; (2) Taylor's testimony ignores and contradicts the
Agreement; and (3) it is inadmissible under the Federal Rules of Evidence.4
Plaintiff states that Taylor is actually an undisclosed expert whose testimony will be

based on "his alleged experience in the construction industry." [ECF No. 55]. Plaintiff relied

4 Plaintiff mentions that Defendant filed Taylor's affidavit after the close of discovery
but does not explain whether the timing of the affidavit caused it harm. [ECF No. 43, p. 3].
In Defendant's response, it mentions that Plaintiff took Taylor's deposition. [ECF No. 49, p.
3].
on two cases, but the cases are inapplicable because they involve witnesses whom the
opposing party deemed as experts. Here, Defendant never labeled Taylor as an “expert”
witness, and, in its response, states6 that it “does not intent [sic] to seek to qualify Mr. Taylor
as an expert witness.” [ECF No. 49, p. 3]. Specifically, Defendant explains that its “intention

[is] to rely on Mr. Taylor’s non-expert testimony.” [ECF No. 49, p. 4 (emphasis added)].
Defendant argues that Taylor "possess[es] firsthand knowledge of the provisions and
definitions within the Contract, and his testimony was offered as a factual account of

how 'Work' was defined in the Contract, which also happens to align with how the term
'work' is defined and understood in the construction industry." Id. at 3–4.
But Taylor's testimony is based on his specialized knowledge from experience in the

construction industry and as Defendant's CEO. Plaintiff argues that Taylor's testimony is
therefore impermissible because: (1) his specialized knowledge had to be identified, (2) he
had to be disclosed as an expert, and (3) he cannot fit into the category of a lay witness who
can provide opinion testimony. [ECF No. 55]. As outlined below, a lay witness may provide

opinion testimony under Federal Rule of Evidence 701 -- but only if it is “not based on
scientific, technical or other specialized knowledge within the scope of Rule 702.” (emphasis
added).

5 The two cases are Dixon v. United States, 15-23502-CIV, 2017 WL 5643319, at *1 (S.D.
Fla. Mar. 1, 2017) and MKT Reps S.A. DE C.V. v. Standard Chartered Bank Int'l (Americas)
Ltd., 10-22963-CIV, 2011 WL 13099888, at *5 (S.D. Fla. Nov. 22, 2011).
6 The Undersigned notes that Defendant's response is not based on any supporting
Under Federal Rule of Civil Procedure 26(a)(2)(A), a party must disclose the identity
of anyone who may serve as an expert witness. In Pac. Atl. Lines, Inc. v. Jah, the district court
dealt with a similar issue as the one Plaintiff raises here. No. 1:09-CV-0625-SCJ, 2011 WL
13176018, at *2 (N.D. Ga. Sept. 27, 2011). There, the defendant moved to exclude the

plaintiff's CEO from testifying about lost profits because: "(1) lost profits projections require
scientific, technical, or other specialized knowledge beyond the scope of her lay witness
opinion under Rule 701, (2) she is not an expert witness under Rule 702, and (3) Rule 403

bars her testimony as the probative value of her 'shoddy calculations,' [ ], is substantially
outweighed by the likelihood that it will mislead the jury, cause confusion of the issue and
unfair prejudice." Id.

The district court discussed the following:
Rule 701 permits lay testimony in the form of opinions or inferences if that
testimony is “(a) rationally based on the perception of the witness, (b) helpful
to . . . the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” In
addressing the 2000 amendment to Rule 701, the Eleventh Circuit notes that
“the addition of subsection (c) was an attempt ‘to eliminate the risk that the
reliability requirements set forth in Rule 702 will be evaded through the simple
expedient of proffering an expert in lay witness clothing.’” Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1222 (11th Cir.
2003) (quoting Fed. R. Evid. 701 Advisory Committee Notes (2000 amend.)).

However, binding precedent has recognized generally that business owners
and officers may testify as lay witnesses “based upon their particularized
knowledge garnered from years of experience within the field” and has
specifically allowed non-expert testimony on the issue of lost profits. Tampa
Bay, 320 F.3d at 1223; Malcolm v. Marathon Oil Co., 642 F.2d 845, 864 (5th Cir.
1981) (holding that the plaintiff presented sufficient evidence to create a jury
issue as to the amount of lost profits by proffering a record of past profit and
testimony regarding its accuracy, and concluding that a “non-expert's
testimony regarding the past sales volume and profit margin may be used to
measure damages”).

Id. (footnote reworded). The Jah Court concluded that, under Rule 701, the plaintiff could
"establish damages in the form of lost profits through the testimony and calculations of its
CEO to the extent those calculations are based on [the CEO's] particularized knowledge and
do not require the presentation of scientific, technical, or other specialized information
before the jury." Id.
In Tampa Bay, the Eleventh Circuit affirmed the district court's decision allowing lay
witnesses to testify whether charges were either fair and reasonable or in line with similar
services provided by similar operations because they testified based on "particularized
knowledge garnered from years of experience within the field." 320 F.3d at 1223. (citing Agro
Air Assoc.'s, Inc. v. Houston Cas. Co., 128 F.3d 1452 (11th Cir. 1997) (holding that testimony of
company's employees and officers relating to the ultimate issue in the case was admissible

under Rule 701 because the appellant had the opportunity to cross-examine the witnesses
and so any objection to the testimony went to its weight not to its admissibility)).
If Taylor's testimony does not include any “scientific, technical or other specialized

knowledge within the scope of” expert testimony and the contract is ambiguous, then
(without considering other factors) he might be able to testify as a lay witness and provide

7 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), our appellate court held
that all Fifth Circuit decisions issued before September 30, 1981 would become binding
opinion testimony about the terms of the Agreement. See Adapt Programs, LLC v. Veritable
Billing Servs., LLC, No. 20-25161-CV, 2023 WL 3778251, at *6 (S.D. Fla. Mar. 27, 2023) (citing
Fed. R. Evid. 701(c); Instant One Media, Inc. v. EzFauxDecor, LLC, No. 22-11374, 2023 WL
2422196, at *5–6 (11th Cir. Mar. 9, 2023) (discussing how the plaintiff failed at trial to

“provide information or data sufficient to enable the trier of fact to estimate the amount of
loss with reasonable certainty” in a breach of contract case, and the limitation of recovery to
actual expenses incurred)).

On the other hand, if Taylor’s opinions are actually disguised expert testimony
because they are based on scientific, technical, or other specialized knowledge, then they are
inadmissible because Defendant never made an expert witness disclosure about his

opinions.
The Undersigned is not convinced that Taylor’s opinions are permissible under Rule
701. They appear to be based on his more than 40 years of experience in the construction
industry, which sounds like the type of specialized knowledge which precludes him from

offering lay opinion testimony under Rule 701. In addition, courts often permit experts to
provide opinion testimony about an industry’s understanding of terms -- which undermines
the argument that a lay witness could provide opinion testimony about a term’s meaning in

a particular industry.8 Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 878 (5th Cir. 2013)

8 Federal Rule of Evidence 701 prevents opinion testimony by lay witnesses if it is
based on “scientific, technical or other specialized knowledge,” while Rule 702 permits an
expert to testify in the form of an opinion if the witness is qualified by “knowledge, skill,
(permitting disclosed expert testimony regarding “the software industry’s understanding
of [document] terms”); Cage v. City of Chicago, 979 F. Supp. 2d 787, 803 (N.D. Ill. 2013) (“[A]n
expert witness may opine on the accepted meaning (or lack thereof) of a word or phrase
within a particular industry based [sic] his or her experience and training.” (emphasis

added)).
So Taylor’s proposed testimony about how the construction industry interprets the
term “Work” is most likely not a lay opinion permissible under Rule 701. Instead, it is

probably an expert opinion which could have been admissible under Rule 702 if Defendant
had made the required, timely disclosure (which it did not). The Undersigned uses the terms
“most likely” and “probably” because I am strongly inclined to conclude that the testimony

is actually disguised expert opinion testimony (i.e., not lay witness opinion testimony) but
have not definitively made that conclusion. However, this lack of certainty is ultimately
academic because the parol evidence rule prevents the proposed testimony from being
admitted.

Plaintiff argues that "testimony regarding the construction industry’s alleged
understanding of the word 'Work' should be excluded because it ignores and contradicts
the express terms of the Agreement." [ECF No. 43, p. 4]. Defendant states that Taylor's

understanding of how "Work" is defined aligns with how it is "defined and understood in
the construction industry." [ECF No. 49, p. 4]. Plaintiff contends that Defendant should be

technical or other specialized knowledge will help the trier of fact to understand the
precluded from offering parol evidence because § 1.1.3 is unambiguous and Defendant does
not allege that any ambiguity exists. The Undersigned agrees.
“Contract interpretation begins with a review of the plain language of the agreement
because the contract language is the best evidence of the parties’ intent at the time of the

execution of the contract.” Taylor v. Taylor, 1 So. 3d 348, 350 (Fla. 1st DCA 2009) (citing Royal
Oak Landing Homeowner's Ass'n, Inc. v. Pelletier, 620 So. 2d 786, 788 (Fla. 4th DCA 1993)).
“When the terms of a contract are ambiguous, parol evidence is admissible to ‘explain,

clarify or elucidate’ the ambiguous terms. However, a trial court should not admit parol
evidence until it first determines that the terms of a contract are ambiguous.” Id. at 350–51
(citations omitted). “In the absence of an ambiguity on the face of a contract, it is well settled

that the actual language used in the contract is the best evidence of the intent of the parties,
and the plain meaning of that language controls.” Acceleration Nat. Serv. Corp. v. Brickell Fin.
Servs. Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 1st DCA 1989).
The parties' contract can be broken into two parts: the General Conditions and the

Agreement. The Agreement's Article 2 § 2.1 (entitled The Work of This Contract) states "[t]he
Work of the Contract generally consists of construction of a new [six]-story assisted living
facility with a basement parking garage." [ECF No. 43-2, p. 2] (emphasis added). However,

General Conditions Article 1 § 1.1.3 (entitled “The Work”) states "[t]he term 'Work' means
the construction and services required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials, equipment and services
provided or to be provided by the Contractor to fulfill the Contractor's obligations. The
Work may constitute the whole or part of the Project." Id. at 18 (emphasis added). The Court
notes that § 1.1.3 falls within the General Conditions' section labeled "Basic Definitions".
(emphasis supplied).
In defining the term "Work", Plaintiff looks to the language from § 1.1.3, while

Defendant refers to § 2.1. Plaintiff contends that the § 1.1.3 language defines "Work" and is
broader than the "alleged 'construction industry' understanding referenced" by Taylor in his
affidavit. [ECF No. 43-1, p. 9]. Defendant argues that because Plaintiff disagrees with

Defendant’s chosen interpretation, that the parties should refer to § 14.2 from the
Agreement. Section 14.2 states, “[i]n the event of any conflict, ambiguity, or inconsistency
among any provisions within the Contract Documents, the following order of precedence

shall apply: Change Order; Assumptions, Exclusions and Clarifications dated 06.11.21;
Contract; General Conditions; Plans; Specifications.” [ECF No. 43-2 p. 15 (emphasis
added)]. Defendant concludes that “Work” under § 2.1 therefore trumps Plaintiff’s reliance
on § 1.1.3.

As previously mentioned, neither party has argued that the term “Work” is
ambiguous. In Steel Supplements, Inc. v. Blitz NV, LLC, the district court faced a similar
situation. No. 8:20-CV-2971-WFJ-TGW, 2023 WL 145322, at *3 (M.D. Fla. Jan. 10, 2023).

There, the parties disputed what the contract provided for regarding consideration (because
of their opposing interpretations of one of the contract's sections). Id. Section 1.6, the section
at issue, defined “Gross Sales” as “all sales derived by [the plaintiff] from all sources,
including but not limited, to the sale of products, services and related items.” Id. The
defendant interpreted section 1.6 to mean that “Gross Sales” included all sales “before
discounts, returns, and allowances . . . from ‘all sources’ including ‘services.’” Id. (internal
citation omitted). However, the plaintiff interpreted it to "only include sales revenue in the
form of 'the total amount of value in money received for goods sold or services

performed[.]'”.
The district court provided the following analysis:
As an initial matter, the Agreement’s terms are unambiguous. It is worth
reiterating that Section 1.6 explicitly defines “Gross Sales” as “all sales
derived by [the plaintiff] from all sources, including but not limited, to the sale
of products, services and related items.” Dkt. S-16 § 1.6. Section 4 then
provides in pertinent part that “[the plaintiff] shall pay [the defendant] a 10%
commission on the Gross Sales of [the plaintiff] beginning with sales as of
April 1, 2017.” Id. § 4. This language is not rendered ambiguous merely
because the parties offer different interpretations of it. See BKD Twenty-One
Mgmt. Co. v. Delsordo, 127 So. 3d 527, 530 (Fla. 4th DCA 2012) (finding that “a
true ambiguity does not exist merely because a contract can possibly be
interpreted in more than one manner”). Nor is it rendered ambiguous
considering it requires analysis. Penzer v. Transp. Ins. Co., 29 So. 3d 1000, 1005
(Fla. 2010) (finding that “[a] provision is not ambiguous simply because it is
complex or requires analysis”).

That said, neither party offers the one construction that Section 1.6 is
reasonably susceptible to based on the four corners of the Agreement. See BKD,
127 So. 3d at 530 (finding that “contractual language is only ambiguous if it is
susceptible to more than one reasonable interpretation”); see also [Fecteau v. Se.
Bank, N.A., 585 So. 2d 1005, 1007 (Fla. 4th DCA 1991)] (finding that, where the
terms of a contract are unambiguous, “the parties’ intent must be discerned
from the four corners of the document”).

Id. at *3-4 (emphasis added). The district court found that the plaintiff’s interpretation
“unreasonably narrowed” the meaning of “Gross Sales”, and that defendant’s interpretation
“unreasonably” expanded the meaning of “Gross Sales.” Id. at *4. In analyzing the respective
interpretations, the district court looked to other sections in the contract, as well as to Black's
Law Dictionary.
Here, the parties dispute what "Work" means. Upon a review of the contract, the
Court finds that § 1.1.39 explicitly provides the definition while § 2.110 provides a general

description of what "Work" could include. Defendant’s argument that "'Work' is defined" in
§ 2.1 is incorrect because § 2.1 describes what the "Work of the Contract generally consists
of" but does not define it. [ECF No. 49, p. 4 (emphasis added)]. It is a generic, overall

statement about the nature of the project. However, unlike § 2.1, § 1.1.3 (1) individually
addresses the term "Work" (as compared to "the Work of the Contract"); (2) is a subsection
within the "Basic Definitions" section; and (3) provides details regarding what it includes

(as compared to a generalization of what it consists of).
Additionally, Defendant, in effect, admitted that services are encompassed by the
definition of "Work" because Defendant billed Plaintiff for services, such as preparing and
submitting shop drawings. Therefore, the Court concludes that the contract is not

ambiguous and that "Work" is clearly defined, as Plaintiff states, in § 1.1.3.

9 Article 1 § 1.1.3 states "The term 'Work' means the construction and services required
by the Contract Documents, whether completed or partially completed, and includes all
other labor, materials, equipment and services provided or to be provided by the Contractor
to fulfill the Contractor's obligations. The Work may constitute the whole or part of the
Project." Id. at 18. (emphasis supplied).

10 Article 2 § 2.1 states, "The Contractor shall fully execute the Work described in the
Contract Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others. The Work of the Contract generally consists of construction
of a new six-story assisted living facility with a basement parking garage." [ECF No. 43-2, p.
The parol evidence rule provides that a written document intended by the parties to
be the final embodiment of their agreement may not be contradicted, modified or varied by
parol evidence. See The Florida Bar v. Frederick, 756 So. 2d 79, 84–85 (Fla. 2000). "Generally,
the party seeking to introduce parol evidence must establish that the document is

ambiguous and in need of interpretation." LSQ Funding Grp., L.C. v. EDS Field Servs., 879 F.
Supp. 2d 1320, 1328 (M.D. Fla. 2012) (citing King v. Bray, 867 So. 2d 1224, 1226 (Fla. 5th DCA
2004)). Taylor's testimony regarding how "Work" was defined in the Contract and its

alignment with construction industry understandings is an example of impermissible parol
evidence because it seeks to contradict or modify the final embodiment of the contract.
As previously mentioned, neither party made any mention or comment stating that

the contract or the term "Work" was ambiguous. Therefore, the Undersigned grants this
portion of Plaintiff's motion because the contract is unambiguous. Without a need for
interpretation, the parol evidence rule bars Taylor's opinion testimony regarding the term
"Work" and its alignment with construction industry “understandings.”11

B. Whether Defendant Should be Excluded From Offering Evidence Regarding the
Date of the Building Permit's Issuance

11 Taylor’s affidavit does not cite books, treatises, articles, journals, studies or case
law. He merely provides his opinion about what he believes is the industry understanding
of a word (which is already defined differently in the contract). Moreover, Taylor’s
affidavit does not say that the parties discussed the meaning of the term “Work”
during contract negotiations, nor does he say that earlier drafts contained a different
definition than the one used in the contract. And he does not conclude that the contractual
Plaintiff argues that the date of the building permit's issuance is irrelevant to whether
Defendant possessed the authority to unilaterally terminate the contract because the
contract was terminated on February 2, 2022 and the building permit was issued in
November 2022. [ECF No. 43, p. 6]. Defendant responded that the issuance date is relevant

to "the issue of whether [Defendant] properly terminated the Contract" because it was
Plaintiff's obligation to obtain the permit and because Defendant possessed the right to
terminate the Contract. [ECF No. 49, p. 6]. Defendant contends that the issue date and

Plaintiff's failure to timely obtain the permit is evidence "of its material prior breach." Id. at
8.
Plaintiff states that "the issue in dispute is whether [Defendant] was permitted to

abandon the Project" in February 2022. [ECF No. 55, p. 7]. Plaintiff contends that "evidence
regarding when the building permit was issued after [Defendant] abandoned the Project is
irrelevant to whether [Defendant] possessed the right to terminate the Agreement on
February 2, 2022, and would be offered only to distract from this issue in dispute." Id.

Plaintiff states that the issuance date is also irrelevant to its damages because the
damages were calculated in July 2022, before the issuance date.12 Finally, Plaintiff argues that
the probative value of the "building permit's eventual issuance date (if any) is substantially

12 The issuance date is additionally irrelevant in calculating liquidated damages
because the calculation involves the difference in time between the notice to proceed date
and the projected completion date from the original Contract with Defendant and the
replacement contract with Winmar. [ECF No. 55, pp. 6-8]. When the permit was issued was
not referenced or taken into consideration when calculating the damages. Id.
outweighed by the tendency of this information to unfairly prejudice" Plaintiff or confuse
the issues. [ECF No. 43, p. 7]. Defendant states the issuance date is relevant to damages
because the delay in obtaining the permit added costs to the project.13 [ECF No. 49, p. 7].
The Undersigned agrees with Plaintiff.

Defendant's attempt to weaponize the issuance date against Plaintiff is seemingly an
attempt to confuse the Court and jury with issues not in dispute, especially when Defendant
was also responsible for the delay. Such evidence or argument is not relevant under Fed. R.

Evid. 401 and 402, and must additionally be excluded under 403 as it is more unfairly
prejudicial than probative, would confuse the issues, mislead the jury, cause undue delay,
and waste time. See J & M Distrib., Inc. v. Hearth & Home Techs., Inc., No. 13-CV-72 SRN/TNL,

2015 WL 137616, at *8 (D. Minn. Jan. 9, 2015) (testimony regarding a potential future
termination of the plaintiff was “prejudicial and confusing to the jury” and whether the
defendant could have terminated plaintiff in the future “does not relate” to the defendant’s
earlier termination of plaintiff).

Therefore, Plaintiff's request is granted and any testimony or evidence regarding the
building permit's issuance date is excluded as irrelevant because the issuance date (1)
occurred after the breach, and (2) was not considered when calculating the damages.

C. Whether Defendant Should be Precluded From Alleging that Plaintiff Breached
the Agreement

13 Defendant did not respond to Plaintiff's argument that the issuance date would
In its first set of interrogatories, Plaintiff requested Defendant to "[i]dentify all
breaches of the Contract that You allege [Plaintiff] committed, and state the factual bases as
to how [Plaintiff] allegedly breached the Contract, when [Plaintiff] allegedly breached the
Contract, and how those alleged breaches affected Your performance.” [ECF No. 43-5, pp.

2–3 (Int. 7)]. Defendant responded with "None." Id. Defendant never supplemented its
interrogatory answer.
Plaintiff argues that Defendant should be barred from alleging that Plaintiff breached

the Agreement because of that interrogatory answer and because it never demonstrated that
its failure to supplement the answer was substantially justified or harmless. [ECF No. 43-1,
p. 12]. Defendant concedes that it did not include any language related to Plaintiff's breach

until after its Motion to Dismiss was denied, forcing Defendant to file its Answer (and
affirmative defenses). [ECF No. 49, p. 8]. Defendant's fifth and sixth affirmative defenses
asserted that Plaintiff's "breach of contract claims were barred based upon its prior material
breaches[.]" Id.14

14 Defendant's fifth and sixth affirmative defenses are:

[Defendant] states as its fifth affirmative defense that Plaintiff’s Breach of
Contract claims are barred based upon its prior breach in failing to issue the
Notice to Proceed to [Defendant] in December 2021, or at any time thereafter.

[Defendant] states as its sixth affirmative defense that Plaintiff’s Breach of
Contract claims are barred based upon its prior breach in failing to obtain the
Building Permit.
Defendant argues that it provided the "none" response when it had not yet formulated
allegations of Plaintiff's breaches, and that its Answer to Plaintiff's Complaint had not been
filed due to a pending Motion to Dismiss. Id.
The Eleventh Circuit has held that Rule 26(e) requires a party to:

timely supplement its interrogatory response if it discovers that the response
is materially “incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties during
the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). And Rule 37(c)
outlines the consequences of a party's failure to do so: that party is not allowed
to use the additional or corrective “information . . . to supply evidence on a
motion . . . unless the failure was substantially justified or is harmless.” Fed.
R. Civ. P. 37(c)(1). Other consequences include paying the reasonable expenses
caused by the party's failure. Id.

Levin v. Palm Beach Cnty., 752 F. App'x 734, 737 (11th Cir. 2018).
Federal Rule of Civil Procedure 26(e) provides that a party has a continuing duty to
supplement or correct a response “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect and if the additional
or corrective information has not otherwise been made known to the other parties during
the discovery process or in writing.” Acafrao v. U.S. Century Bank, No. 09-21695-CIV, 2010
WL 4261435, at *2 (S.D. Fla. Aug. 4, 2010) (quoting Fed. R. Civ. P. 26(e)(1)(A)). “It is well
settled that Fed. R. Civ .P. 37(c)(1) mandates that a trial court sanction a party for discovery
violations in connection with Rule 26 [by excluding the pertinent evidence], unless the
violation was harmless or substantially justified.” Young v. Lexington Ins. Co., 269 F.R.D. 692,
693 (S.D. Fla. 2010) (quoting Saewitz v. Lexington Ins. Co., No. 02-23248-CIV, 2003 U.S. Dist.
LEXIS 27568, at *5 (S.D. Fla. Oct. 21, 2003)); see also Fed. R. Civ. P. 37(c)(1), Advisory
Committee Note, 1993 Amendments; Salgado v. General Motors Corp., 150 F.3d 735, 742 n.6
(7th Cir. 1998) (“sanction of exclusion is automatic and mandatory” unless non-movant can
show the violation was justified or harmless).
Federal Rule of Civil Procedure 33 governs interrogatories. An interrogatory's scope

is defined as, "any matter that may be inquired into under Rule 26(b)." Fed. R. Civ. P.
33(a)(2). "The interrogatories must be answered: (A) by the party to whom they are directed;
or (B) if that party is a public or private corporation, a partnership, an association, or a

governmental agency, by any officer or agent, who must furnish the information available
to the party." Id. at (b)(1) (emphasis added).
"Each interrogatory must, to the extent it is not objected to, be answered separately

and fully in writing under oath." Id. at (b)(3) (emphasis added). Defendant argues that it has
maintained its affirmative defenses of prior breach. Plaintiff emphasizes that affirmative
defenses are not evidence. Defendant’s responses to Plaintiff's interrogatories were under
oath, unlike its affirmative defenses.

There is no doubt that Defendant failed to supplement its interrogatory answer to
provide information about its position that Plaintiff breached the contract. Therefore, it
cannot assert that prior breach position at trial -- unless the failure was substantially justified

or harmless.
To determine whether a nondisclosure or delayed disclosure was substantially
justified or harmless, the Court considers: (1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to
which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and
(5) the non-disclosing party's explanation for its failure to disclose the evidence. Grigorian v.
FCA US, LLC, No. 18-24364-CIV, 2019 WL 2754154, at *5 (S.D. Fla. July 2, 2019), report and
recommendation adopted No. 18-24364-CIV, 2019 WL 5260124 (S.D. Fla. Sept. 16, 2019)

(internal quotations omitted). See also RR Restoration, LLC v. Empire Indem. Ins. Co., No. 2:21-
cv-866, 2023 WL 4763976 (M.D. Fla. July 26, 2013), at *5-6 (finding omission in disclosure to
be harmless). See also Henderson v. Ford Motor Co., 72 F.4th 1237, 1243 (11th Cir. 2023) (noting

that district court has “considerable discretion” in determining whether exclusion is
proper”).
Under the circumstances here, the omission was harmless. Defendant disclosed its

prior breach position in its affirmative defenses. Plaintiff could easily have probed those two
related affirmative defenses at the Rule 30(b)(6) deposition of Defendant’s corporate
representative. In fact, its “Matters Subject to Examination” section of its Rule 30(b)(6)
Notice announces, as the very first topic, “Factual bases concerning Current Builders’

Answer and Affirmative Defenses to the Amended Complaint.”
For reasons which Plaintiff has never disclosed, it never followed through with
questions about the first topic listed and never asked Defendant’s representative questions

about the facts underlying Defendant’s “But-Plaintiff-Committed-A-Prior-Breach-By-
Failing-to-Issue-the Notice-to-Proceed” defense. Had Plaintiff done so, it would have
obtained additional information.
“Prejudice generally occurs when late disclosure deprives the opposing party of a
meaningful opportunity to perform discovery and depositions related to the documents or
witnesses in question.” Bowe v. Pub. Storage, 106 F. Supp. 3d 1252, 1260 (S.D. Fla. 2015)
(emphasis supplied). “Failure to timely make the required expert witness disclosures is

harmless when the party entitled to the disclosure suffers no prejudice.” Kleiman v. Wright,
No. 18-CV-80176, 2020 WL 6729362, at *5 (S.D. Fla. Nov. 16, 2020). See also MacuHealth, LP
v.Vision Elements, Inc., No. 22-cv-199, 2023 WL 3863341, at *6 (M.D. Fla. June 7, 2023)

(denying motion to strike expert’s supplemental report because party waited until a month
after discovery closed to raise the issue of prejudice).
So, yes, Plaintiff is prejudiced by its lack of more-specific information about the so-

called prior breach theory, but its prejudice was self-inflicted (by its inexplicable failure to
ask questions about two related affirmative defenses expressly disclosed in Defendant’s
Answer). Plaintiff was not deprived of the opportunity to obtain information about
Defendant’s position on prior breach. It simply chose to not ask questions at the deposition

even though it listed the topic as the first one on its list. Therefore, Defendant’s failure to
supplement its interrogatory answer was harmless, thereby eliminating the potential
sanction of precluding Defendant from arguing this position. See generally Magnolia Fin. Grp.

v. Antos, No. 15-7144, 2018 WL 11415082 (E.D. La. Mar. 9, 2018) (denying motion to exclude
evidence based on failure to specifically supplement interrogatory answer about what
misrepresentations the defendants made).
The Undersigned denies this portion of Plaintiff’s motion.
Ill. Conclusion
For the reasons stated above, the Undersigned grants in part and denies in part
Plaintiff's motion. Defendant is barred from: (1) offering evidence regarding alleged
construction industry understandings because of the parol evidence rule and Defendant's
failure to provide the necessary disclosure under the federal rules of evidence and civil
procedure; and (2) offering evidence regarding the date of the building permit's issuance
because it is irrelevant. But I deny the motion as to Defendant's affirmative defenses
concerning prior breach by Plaintiff.
DONE AND ORDERED in Chambers, in Miami, Florida, on October 12, 2023.

we Ja Coe -
Lyf Goodman
UNITED STATES MAGISTRATE JUDGE

Copies furnished to:
The Honorable Federico A. Moreno
All Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122561. Public record. Not legal advice.