Appendix — Pinellas County v. CH2M Hill Southeast, Inc.
Supreme Court brief1994
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—
arene Court, U8
f£ILED
AUG 2 2 1994
DAKE OF PAE CLERK
CASE NO. 93-2071
- eo eee
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
PINELLAS COUNTY, FLORIDA,
Petitioner,
v.
CH2M HILL SOUTHEAST, INC.,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
SECOND DISTRICT COURT OF APPEAL OF FLORIDA
APPENDIX TO
RESPONDENT’S BRIEF IN OPPOSITION
ARTHUR J. ENGLAND, JR., Eso.
(COUNSEL OF RECORD)
CHARLES M, AUSLANDER, Eso.
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
TELEPHONE: (305) 579-0500
COUNSEL FOR RESPONDENT
BEST AVAILABLE COPY
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APPENDIX
TABLE OF CONTENTS
APPENDIX 1
Mandate from the Second District Court
of Appeal in CH2M Hill Southeast, Inc.
v. Pinellas County, 598 So. 2d 85 (Fla.
ye fe 1-1
APPENDIX 2
Initial Brief of CH2M Hill Southeast, Inc.
to the Second District Court of Appeal of secaiesitins
Florida in CH2M Hill Southeast, Inc. v.
Pinellas County, 598 So. 2d 85 (Fla. 2d
EE PewacuvdeuuSawien ba eer Kees sees 2-1
APPENDIX 3
Motion for Rehearing, Rehearing En Banc, or
Certification, and for Clarification to the
Second District Court of Appeal of Florida in
CH2M Hill Southeast, Inc. v. Pinellas County,
598 So. 2d 85 (Fla. 2d DCA 1992) ............. 3-1
APPENDIX
TABLE OF CONTENTS
(CONTINUED)
APPENDIX 4
Order of the Second District Court of Appeal
in CH2M Hill Southeast, Inc. v. Pinellas
County, 598 So. 2d 85 (Fla. 2d DCA 1992) ....... 4-1
APPENDIX 5
Order of the Supreme Court of Florida in
CH2M Hill Southeast, Inc. v. Pinellas County,
598 So. 2d 85 (Fla. 2d DCA), review denied,
G13 So. 20 7 (FU, BFFE) os cc vvevetccessuscnens 5-1
APPENDIX 6
Excerpts of transcript of proceedings on
March 3, 1993 before The Honorable Howard Rives
in the Pinellas County Circuit Court Case No.
SD 15ST 6c octnyecensevaueweeeuu ee enna 6-1
APPENDIX
TABLE OF CONTENTS
(CONTINUED)
APPENDIX 7
Answer Brief of CH2M Hill Southeast, Inc. to
the Second District Court of Appeal of Florida
in Pinellas County v. CH2M Hill Southeast, Inc.
638 So. 2d 68 (Fla. 2d DCA 1994)
iii
APPENDIX 1
MANDATE
FROM
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
STYLE: _CH2M Hill Southeast, Inc, v. Pinellas County _
COUNTY: _ Pinellas
APPELLATE CASE NO: 90-02027, 90-02028, 90-03562, 90-03563 _
TRIAL COURT CASE NO: _ 83-13313-8
This cause having been brought to this Court by
appeal and after due consideration, the Court having
issued its opinion;
YOU ARE HEREBY COMMANDED that
further proceedings be had in said cause in accordance
with the opinion of this Court and with the rules of
procedure and laws of the State of Florida.
1-1
WITNESS, the Honorable Jack R. Schoonover,
Chief Judge of the District Court of Appeal of
the State of Florida, Second District, and the seal
of the said Court at Lakeland, Florida on this
day.
June 8, 1992
[S/
WILLIAM A. HADDAD
CLERK, DISTRICT COURT OF
APPEAL OF FLORIDA, SECOND
DISTRICT
1-2
tell
APPENDIX 2
IN THE DISTRICT COURT OF APPEAL
SECOND DISTRICT OF FLORIDA
Case Nos. 90-02027 and 90-02028
MADISON MANAGEMENT GROUP, INC.
and CH2M HILL SOUTHEAST, INC.,
Appellants,
v.
PINELLAS COUNTY, FLORIDA,
Appellee.
INITIAL BRIEF OF APPELLANT
CH2M HILL SOUTHEAST, INC.
On Appeal from a Final Judgment
entered in the Sixth Judicial Circuit
in and for Pinellas County, Florida
2-1
Arthur J. England, Jr., Esq.
Fla. Bar No. 022730
Linda Ann Wells, Esq.
Fla. Bar No. 231861
Charles M. Auslander, Esq.
Fla. Bar No. 349747
Fine Jacobson Schwartz Nash
Block & England
One CenTrust Financia! Center
100 S.E. Second Street
Miami, Florida 33131
(305) 577-4000
- and -
Stephen M. Bull, Esq.
Florida Bar No. 172347
Guy S. Haggard, Esq.
Florida Bar No. 372005
Bull and Haggard
Suite 1200
111 North Orange Avenue
Orlando, Florida 32801
Counsel for CH2M Hill
y My
~~ =
TABLE OF CONTENTS
Page
We ee I No dove caisceccseccéieeuka 2-7
EC Kc dan ce 05 o's 600 60 6004500 w yen 2-16
PO GU GP GED Sev eiccceuwecdcbueces 2-17
Statement of the Facts .......cccccccciccecs 2-18
Summary of Argument ..............0000005 2-27
PE wae Wen éakeendecteeccweesveccecees 2-29
|. The trial judge was required as a matter of
law to disqualify himself ................ 2-29
A. The legal bases for disqualification .... 2-30
B. The motion was legally sufficient on its
SD Ge I Fak bo hoc tkd Veueece: 2-33
1. Demonstrated bias in favor of the
County’s Position .............. 2-33
2. Limitations placed on Hill’s
examination of witnesses ........ 2-35
3. Hostility toward and embarrassment
ee 2-40
4. Curtailed cross examination ...... 2-41
2-3
TABLE OF CONTENTS
(Continued)
Page
C. Disqualifying conduct in addition to legal
sufficiency of the motion ............ 2-44
1. Challenges to the accuracy of the
factual allegations, evaluating his
own subjective views rather than the
perception of the client, and
demonstrating hostility toward Hill’s
GUE oo 60:64 6s Ce egiodeesecs 2-47
2. Tirade on the record and testimony
on the truth of the allegations .... 2-50
Il. Hill is not liable to the Counts under any
OEY GER ci cecccbeccksivdeswccces 2-51
A. Hill has no tort liability to the County . . 2-52
1. Hill committed no tort independent
of its contractual duties ......... 2-52
2. Hill had no statutory duties to the
PPPS T TTT Te TTT CLUrTe 2-55
3. ~The County Presented no proof of
damages sufficient to support a tort
8 PEP PTET CULT UTE T ETT 2-59
l4
Il.
TABLE OF CONTENTS
(Continued)
Page
B. Hill is not liable for breach of contract . 2-62
I.
Hill had no contractual duty to
inspect the manufacture of Pipe
SE Oba ede css abescocces’ 2-63
Hill could not be held to a
contractual duty under the County’s
contract with Interpace through the
legal fiction of a “merger” of two
separate documents ............ 2-67
Hill’s pipeline design was free of
PP Pe Or ee eee 2-74
a. Hill did not breach its contract
in relation to Interpace’s use of
class IV wire in pipe segments 2-74
b. Hill did not breach its contract
in relation to pipeline pressure 2-78
The trial court exceeded its authority in
awarding the damages equal to the cost of
replacing the entire pipeline with improved
CE 0b 6 a he KESPA Seow rh cd dee cs 2-79
A. The trial judge improperly held Hill
liable for replacement of the entire
PE vb b eres ohetsecee setedews 2-79
TABLE OF CONTENTS
(Continued)
Page
B. The trial judge improperly awarded
"betterment" damages .............. 2-87
| PPV EET EC ECE ELC CTA PEEP TIee 2-91
Certificate Of SOFVICE 2. cc cccsccccccqesen re:
2-6
TABLE OF AUTHORITIES
Page
Cases
A.T.S. Melbourne, Inc. v. Jackson
473 So.2d 280 (Fla. Sth DCA 1985) ...... 2-31
Adler v. Seligman,
438 So.2d 1063 (Fla. 4th DCA 1983) . 2-82, 2-84
AFM Corp. v. Southern Bell Telephone and
Telegraph Co.
515 So.2d 180 (Fla. 1987) ......... 2-28, 2-53,
Ahimsa Technic, Inc. v. Lighthouse Shores
Town Homes Development Co., Inc.
543 So.2d 422 (Fla. Sth DCA 1989) ...... 2-77
Allegheny Mutual Casualty Co. v. State
176 So.2d 362 (Fla. 2d DCA 1965) ....... 2-68
Bank of Miami Beach v. Newman
163 So.2d 333 (Fla. 3d DCA 1964) .. . 2-80, 2-83
Barile Excavating & Pipeline Co., Inc. v.
Kendall Properties, Inc.
462 So.2d 1129 (Fla. 4th DCA 1984) ..... 2-87
Bayshore Development Co. v. Bonfoey
75 Fla. 455, 78 So. 507 (Fla. 1918) ... 2-77, 2-84
2-7
——————
TABLE OF AUTHORITIES
(Continued)
Page
Bernard Johnson, Inc. v. Continental
Constructors, Inc.
G50 S.W2d 36S (Tx. 1962) 2. cc cccccccs 2-70
Bouden v. Walker
266 So.2d 353 (Fla. 2d DCA 1972) ....... 2-68
Brewton v. Kellt
166 So.2d 834 (Fla. 2d DCA 1964) ....... 2-31
Bundy v. Rudd
366 So.2d 440 (Fla. 1978) .......... 2-31, 2-46
Clark Auto Leasing & Rentals, Inc. v. Lupo
547 So.2d 1016 (Fla. 4th DCA 1989) ..... 2-50
Colonial Penn Communities, Inc. v. Crosles
443 So.2d 1030 (Fla. 5th DCA 1983),
rev. denied, 450 So.2d 486 (Fla. 1984) ..... 2-58
Cort v. Ash
422 U.S. 66, 95 S.Ct. 2080,
TP Ree PRUE ct dncdwevecescecs 2-58
E.C. Goldman, Inc. v. A/R/C Associates, Inc.
543 So.2d 1268 (Fla. 5th DCA),
rev. denied, 551 So.2d 461 (Fla. 1989) ..... 2-77
E.F.K. Collins Corp. v. S.M.M.G., Inc.
464 So.2d 214 (Fla. 3d DCA 1985) . . . 2-80, 2-83
2-8
TABLE OF AUTHORITIES
(Continued)
Page
East River Steamship Corp. v. Transamerica
Delaval, Inc.
476 U.S. 858, 106 S.Ct. 2295,
FO Sa OP EEPO) ccc ccscesvvess 2-61
Electronic Security Systems Corp. v. Southern
Bell Telephone and Telegraph Co.
482 So.2d 518 (Fla. 3d DCA 1986) .. 2-53, 2-54,
2-59
Florida Power & Light Co. v. McGraw Edison Co.
696 F. Supp. 617 (S.D. Fla. 1988),
affd, 875 F.2d 873 (ilth Cir. 1989) ...... 2-60
Florida Power & Light Co. v. Westinghouse
Electric Corp.
510 So.2d 899 (Fla. 1987) ...... 2-28, 2-60, 2-61
Freshwater v. Votter
511 So.2d 1114 (Fla. 2d DCA 1987) ...... 2-56
Grossman Holdings, Ltd. v. Hourihan
414 So.2d 1037 (Fla. 1982) ............. 2-85
Grossman v. Sea Air Towers, Ltd.
513 So.2d 686 (Fla. 3d DCA 1987),
rev. denied, 520 So.2d 584 (Fla. 1988) . 2-87, 2-89
Gulfstream Park Racing Ass’n, Inc. v. Gale
540 So.2d 196 (Fla. 3d DCA 1989) ...... 2-31
2-9
TABLE OF AUTHORITIES
(Continued)
Page
Haddad v. Bagwell
eek & & Be: . | Perro: ee 2-71
Hamilton Construction Co. v. Board of
Public Construction
> BORG Tae (Fm. TSGS) hee ciceocncss 2-77
Hanna v. Martin
49 So.2d 585 (Fla. 1950) .......4:: 2-80, 2-83
Hayslip v. Douglas
400 So.2d 553 (Fla. 4th DCA 1981) . . 2-31, 2-32
In re: Estate of Samuel Donner
364 So.2d 742 (Fla. 3d DCA 1978) ....... 2-68
J. Allen, Inc. v. Humana of Florida, Inc.
571 So.2d 565 (Fla. 2d DCA 1990) .. . 2-53, 2-54
Jenkins v. City Ice & Fuel Co.
118 Fla. 795, 160 So. 215 (Fla. 1935) ..... 2-68
Jonn Brown Automation, Inc. v. Nobles
537 So.2d 614 (Fla. 2d DCA 1988) ....... 2-59
Lake v. Edwards
501 So.2d 759 (Fla. Sth DCA 1987) ...... 2-43
Lamendola v. Grossman
439 So.2d 960 (Fla. 3d DCA 1983) ....... 2-43
2-10
TABLE OF AUTHORITIES
(Continued)
Page
Lawrence v. United States
378 F.2d 482 (Sth Cir. 1967) ............ 2-69
Lee County Bank v. Winson
444 So.2d 459 (Fla. 2d DCA 1983),
rev. denied, 451 So.2d 851 (Fla. 1984) ..... 2-56
Lewis v. Guthartz
428 So.2d 222 (Fla. 1982) ......... 2-27, 2-52,
2-54, 2-59
Livingston v. State
441 So.2d 1083 (Fla. 1983) ..... 2-31, 2-32, 2-49
Lochrane Engineering, Inc. v. Willingham
Realgrowth Investment Fund, Ltd.
552 So.2d 228, 232 (Fla. Sth DCA 1989),
rev. denied., sub nom.,
Anderson v. Willingham Realgrowth
Investment Fund, Litd.,
563 So.2d 631 (Fla. 1990)...... 2-77, 2-84, 2-89
MacKenzie v. Super Kids Bargain Store, Inc.
565 So.2d 1332 (Fla. 1990) .... 2-27, 2-30, 2-31,
2-32, 2-47, 2-51
McDermott v. Grossman
429 So.2d 393 (Fla. 3d DCA 1983) . . . 2-32, 2-50
TABLE OF AUTHORITIES
(Continued)
Page
OBS Company, Inc. v. Pace Construction Corp.
558 So.2d 404 (Fla. 1990) .............. 2-69
Ogden v. Groves
241 So.2d 756 (Fla. ist DCA 1970) ...... 2-68
Paddock v. Bay Concrete Industries, Inc.
154 So.2d 313 (Fla. 2d DCA 1963) ....... 2-77
Porter v. Sprague
99 Fla. 371, 126 So. 759 (1930) ......... 2-56
Saporito v. Bone
195 So.2d 244 (Fla. 2d DCA 1967) .. . 2-80, 2-83
Sol Walker & Co. v. Seaboard Coast Line R.R. Co.
362 So.2d 45 (Fla. 2d DCA 1978)........ 2-68
Standard Newspapers, Inc. v. Woods
oop we Re. | re 2-67
Stimpson Computing Scale Co. v. Knuck
508 So.2d 482 (Fla. 3d DCA 1987) ....... 2-31
Strickland-Collins Construction v. Barnett
Bank of Naples
545 So.2d 476 (Fla. 2d DCA 1989) ....... 2-60
Temple Beth Sholom v. Thyne Construction Corp.
399 So.2d 525 (Fla. 2d DCA 1981) ....... 2-87
2-12
TABLE OF AUTHORITIES
(Continued)
Page
Townsend v. State
564 So.2d 594 (Fla. 2d DCA 1990) .. 2-31, 2-32,
2-49
United Steel & Strip Corp. v. Monex Corp.
310 So.2d 339 (Fla. 3d DCA 1975) ....... 2-81
Waldman v. Waldman
520 So.2d 87 (Fla. 3d DCA),
rev. denied, 531 So.2d 169 (Fla.1988) ..... 2-91
2-13
TABLE OF AUTHORITIES
(Continued)
Page
Statutes
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TABLE OF AUTHORITIES
(_ontinued )
Page
Other Authorities
4af
Introduction
This appeal comes from a final judgment
awarding Pinellas County $19.8 million against CH2M
Hill Southeast, Inc. ("Hill"), design engineers on the
County’s 1975 purchase and installation of a 13.5 mile
pipeline to carry drinking water from Pasco County
wellfields to Pinellas County. The award represents the
cost of constructing and installing a completely new and
upgraded 13.5 miles of pipeline, to replace the pipeline
which has been used for the past 12 years and is still
being used.
The trial lasted from January 1989 to January
1990. The trial transcript contains 14,000 pages, the
record comprises 265 volumes, and the index to the
record on appeal is itself 437 pages long. The lower
court's final judgment, which was prepared by counse!
for the County, is 200 pages long, contains 1,164
footnotes, and took plaintiff's counsel over 1000 hours
to draft. (V. 124 at 18442).
Practical necessity limits the points on appeal! to
the most compelling legal errors, starting with the lack
of a fair and impartial trial. Actions taken and
comments made by the trial judge during the course of
trial created a reasonable belief among Hill’s principals
that the trial judge was biased in favor of the County
As a matter of law, the trial judge was required to
disqualify himself when Hill presented timely and
legally sufficient motions for disqualification. Even
under the.conditions Hill was required to endure during
trial, however, the County failed to establish Hill's
liability on any basis for a $19.8 million award.
Throughout this brief, the trial transcript will be
referenced "(V._).”
Statement of the Case
Pinellas County sued Hill, with whose
predecessor (Black, Crow & Eidsness, Inc.) it had
contracted for the design of 13.5 miles of pipeline, for
alleged negligence and breach of contract. (V. 8 at
972-80). The suit included an action against the
manufacturer of the pipe, Interpace, Inc. (now known as
Madison Management Group, Inc.), for negligence,
breach of contract, breach of warranty, strict liability
and fraud. Jd. at 960-72. The case was tried without a
jury to Judge Fred Bryson.
On the morning of October 10, 1989, during the
cousse of trial, Hill filed a verified motion seeking to
disqualify Judge Bryson from proceeding further in the
case. (V. 19 at 2628-3042). Immediately following
presentation of the motion, Judge Bryson adjourned
court for the day. When court reconvened the next
morning, Judge Bryson gave Hill’s counsel an
opportunity to withdraw the motion, made some
comments of his own about the motion, and then
adjourned until the County was prepared to argue
against the motion. (V. 102 at 15194-205). On October
16, Judge Bryson heard three hours of argument by the
County, received affidavits from the County in
opposition to the motion, and accepted memoranda of
law from the parties. On October 17, he denied tho
motion. (V. 24 at 3281-84).
2-17
On October 24, Hill filed a petition for writ of
prohibition in this court, which was denied on October
27 without requiring a response. A second motion to
disqualify Judge Bryson was filed on November 3 and
orally denied on November 6. (V. 104 at 15488). Hill
again filed a petition for writ of prohibition with this
court on November 16, and the court again denied the
petition without requiring a response.
Foilowing the close of evidence in January 1990,
the trial judge directed all parties to submit proposed
findings of fact and conclusions of law. (V. 123 at
18430-431). The parties complied, with the County’s
counsel submitting a 200 page proposed final judgment,
containing 1,164 footnotes. (R. at 3966-4244). Closing
arguments were held on June 2, and four days later
Judge Bryson signed the County’s proposed final
judgment without changing a word, a comma or a
footnote. Jd.
Hill filed a timely notice of appeal. After
extensions of time to file briefs as a result of circuit
court clerical difficulties preparing the record on
appeal, the parties eventually agreed to the submission
of briefs on prescribed dates without citations to the
record, and a later substitution of briefs containing
record citations within 15 days after the record index
was served. The court has authorized briefs of up to 75
pages.
Statement of the Facts
On March 24, 1975, Hill entered into a contract
with Pinellas County to perform specified engineering
2-18
|
services in connection with the design of a water
distribution pipeline for the County (the "Hill
Contract"). The Hill Contract obligated Hill to design a
pipeline that would operate at 100 psi (pounds per
square inch), as set forth in the County’s Ten Year
Master Plan. (V. 128 at 19042 p. 2). That Master Plan
established basic assumptions and design criteria for all
future pipeline pressures, setting distribution operating
pressures at "an absolute maximum of 100 psi" and main
pipe transmission line pressures at never more than 100
psi2/ (V. 224 at 27214 p. 5-4).
The 13.5 mile pipeline was to consist of 3,400
pipe segments, each of which is approximately 20 feet in
length. The pipe segments were made with a concrete
izmer core, steel cylinder, concrete outer core wrapped
with high strength wire, and covered with slurry and
mortar coatings. The pipeline was routed
predominantly through pasturelands, farms, and utility
rights of way. (V. 245 at 27758).
The Hill Contract divided engineering
responsibilities into four categories, iabelled as follows:
4/ In designing a Pipeline for 100 psi operating pressures, Hill
specified an additional 50 psi pressure capacity for the
manufacture of pipe segments as a safety margin, and then
added a 60 psi surze capacity. The County's contract with
the supplier specified that pipe segments were to have a 150
psi capacity. (See V. 219 at 26961-27144 pp. 126-32; V. 220
at 23153; in contrast to V. 128 at 19043 pp. 15069-1 [REV],
19041 p. 10 §3.2.3).
2-19
Item A - Design of Improvements
Item B - Professional Services During
Construction
Item C - Resident Project Representation
Item D - Supplementary Services
The Hill Contract expressly required the County to
authorize services in writing before Hill became
responsible to perform services in any of the four
categories. (V. 128 at 10942 pp. 3-5).
Hill received authorization from the County to
perform design services under Item A on March 26,
1975. (V. 240 at 27671). Item A responsibilities
contemplated design of the pipeline, concluding with
engineering recommendations in regard to the award of
the construction contracts. Hill’s services under Item A
were completed on January 5, 1977. (V. 243 at 27732).
Hill’s specifications for the pipeline segments
required the manufacturer of pipe segments to comply
with standards promulgated by the American Water
Works Association ("AWWA"), and more specifically
for reinforced concrete pressure pipe with steel cylinder
prestressed "in accordance with AWWA’s C301."
(V. 128 at 19043 p. 15060-1 [REV]; V. 244 at 27666).
The specifications also required that the owner of the
pipe segments (which had become the County itself)
receive assurances from the supplier that the pipe
segments were manufactured in accordance with
AWWA standards. (V. 128 at 19043 pp. 15060-1
[REV], 15060-2 [REV], 1010-3).
Specifications for the manufacture of pipe
segments provided that the County and/or its engineer
2-20
could inspect the pipe manufacturing process. (V. 128
at 19043 p. G-2 - G-3 [REV]). The Hill Contract,
however, required County authorization (which was
never given) before Hill could provide inspection
services at the manufacturing site. (V. 128 at 19042
p. 4).
The 1975 Hill Contract had contemplated as an
Item A service that Hill would draft « “traditional”
construction contract for a general contractor with
whom the County would contract to install the pipeline,
and who In turn would be responsible to purchase the
pipe directly from the pipe manufacturer. (V. 76 at
11177). In order to take advantage of its governmental
exemption to avoid the payment of sales tax on the
purchase of pipe segments, however, the County in
September 1976 elected to hire a general contractor
only for installation of the pipeline, and to contrast
directly with a pipe manufacturer to purchase pipe
segments. (V. 128 at 19042). The County’s decision to
have a separate pipe purchase contract was made
approximately a year and a half after execution of the
Hill Contract -- after Hill had performed virtually all of
its Item A design services. (V. 76 at 11179).
Interpace was recommended as the low bidder
for the manufacture of pipe segments for the project on
January 5, 1977. (V. 97 at 14401-402; V. 243 at 27732).
The County awarded a contract for the manufacture of
pipe segments to Interpace (the "Interpace Contract")
based on its lowest responsive bid, its widely-recognized
reputation as one of two primary pipe manufacturers on
the east coast of the United States during the 1970's,
the utilization of Interpace’s prestressed concrete pipe
in hundreds of cities throughout the country, and the
2-21
County’s own use of Interpace’s prestressed concrete
pipe in over 40 miles of the Pinellas County water
system. (V. 44 at 6643-44; V. 66 at 9858; V. 67 at 9943;
V. 128 at 19043 p. B-3 [REV] 1005).
Hill was not a signatory or party to tho Interpace
Contract. The County was identified in the contract as
"resident engineer," and Hill was named as "engineer."
(V. 8 at 1018-23).
Pursuant to the terms of its contract with Hill,
the County authorized Hill to perform Item B,
installation-phase services in connection with the
Pinellas County water system in early 1977. (V. 240 at
27666). Hill’s Item B services contemplated an average
of four visits to the installation site each month, but
also expressly stated that its visits did not guarantee the
contractor’s performance. (V. 128 at 19042 p. 4). The
last, unnumbered paragraph in Item B provided that
Hill’s professional service did not include "the testing of
materials or the furnishing of resident project
representatives, field engineers and inspection
personnel.” Hill fulfilled all of its obligations under
Item B of the contract and a limited number of
specially-requested Item D services, and the County
accepted the project as substantially complete as of
October 2, 1978. (V. 245 at 1172, 1173).
No work was ever 2uthorized by the
Coui:ty for Item C. “resident engineer"
services. Those services were "to observe
the construction work of the contractor on
a daily basis [including] field observation,
inspection of materials and work,
preparation of details for the prosecution
2-22
ower
my
of the work, and other detailed inspection
and complex reportage requirements.
(V. 128 at 19042 p. 5). The County
elected to utilize its own engineering staff
to accomplish these responsibilities,
including daily inspection of the
installation and construction of the
pipeline. (V. 96 at 14225, 14231,
14235-236, 14256). Pipe segments were
inspected anc accepted on site by Bumbey:
& Stimpson, tie County’s installation
contractor. (V. 98 at 14617-619).
The Interpace Contract, to which Hill was not a
party, defined Interpac» as the "supplier." It required
Interpace to furnish evidence that the materials and
finished articles met appropriate manufacturing
standards prior to their delivery to the pipeline site.
(V. 8 at 995, SC-03(B)). Interpace in fact submitted
shop drawings which specified that pipe segments would
be manufactured "in accordance with AWWA
specifications C-301-72." (V. 128 at 19045). Those
specifications allowed the minimal tensile strength for
wire in the pipe segments to exceed class II wire if the
wire met the other requirements for class II wire.
(V. 128 at 19041 C-301-72, para. 2.8.1). Interpace
selected and used class IV wire in its pipe segments.
County experts testified that class IV wire used en this
project passed all test requirements specifically
identified under AWWA standards. (V. 38 at 5716;
V. 44 at 6709-10; V. 50 at 8823-24, 8874; V. 61 at
8807-11; V. 121 at 18137-139).
Prior to executing its contract with Interpace, the
County obtained tests on pipe segment samples taken
2-23
from Interpace’s Lacoochee pipe manufacturing plant.
(V. 84 at 12411-415; V. 96 at 14257-258). Later, acting
under authorization in its contract with Interpace, the
County repeatedly i ed the pipe segment
manufacturing plant“ (V. 96 at 14229-231,
14245-246). As a result of a tip from a pipe
manufacturing competitor and its own visits to
Interpace’s facility, the County suspected that aggregate
used to manufacture the cores and concrete coating of
pipe segments was inadequate. (V. 96 at 14256-259).
The pipeline had been in operation for nearly 12
years at the time of trial. Throughout that time the
water pressure in the pipeline was normally below 100
psi. (V. 62 at 9114; V. 84 at 12463-471; V. 95 at
14052). On November 13, 1979, one segment of
prestressed concrete pipe broke in the pipeline during a
lightning storm which interrupted power to pumps and
caused a surge in pressure that was unchecked because
a county operator had disengaged a bypass valve.
(V. 98 at 14580-586, 14645-655; V. 131 at 19385 p. 44).
This was the only in-service rupture of the pipeline up
to and through the conclusion of trial in January 1990.
On December 20, 1980, a pressure test was
conducted by the County which resulted in a rupture of
one segment of prestressed concrete pipe. Following
the test, the County excavated 10 pipe segments north
of the break, submitted all of these pipe segments to its
experts, and found no indication of any comparable
pressure defect. (V. 71 at 10554-557; V. 220 at 2750,
2/ A Hill representative on approximately three occasions also
observed the manufacturing process for this pipeline at
Interpace. (V. 97 at 14358).
2-24
aa
2715). County experts subsequently inspected an
additional 800 segments of pipe, comprising nearly
three miles of pipeline. These pipe segments were
found to be acceptable. They were left in the pipeline
and continued to function through the trial. (V. 42 at
6405-12; V. 71 at 10557-558).
After the pipe segment’s failure under the
County’s pressure test in December 1980, the County
instituted a monitoring and repair program for the
pipeline. The program began with a 1981
“over-the-line” survey to locate potentially corroded pipe
segments in the pipeline. (V. 70 at 10404-405; V. 221
at 27161). Using this screening method, the County
excavated 10 suspect pipe segments and examined them
for defects. (V. 221 at 27161). Each segment was
found to be in good condition, left in the pipeline, and
continued to function through the trial. (V. 43 at
6488-500).
The County conducted another pressure test of
the entire pipeline in 1982, subjecting it to a sustained
pressure of 150 psi. The pipeline passed the pressure
test without incident. (V. 43 at 6489-92; V. 82 at
7977-79; V. 221 at 27162).
In 1983, the County conducted a number of over-
the-line surveys and excavations, resulting in the
selection of 70 pipe segments to be examined for
defects. Those pipe segments selected for testing were
from areas screened to show the highest potential for
corrosion. (V. 43 at 6509-14). Of these 70 segments,
19 were removed for repair. The other 51 were left in
the pipeline and continued to operate through the trial.
2-25
(V. 43 at 6511-42; V. 72 at 10685-689; V. 133 at 19388;
V. 155 at 20320; V. 224 at 27164).
In 1984, the County conducted another over-the-
line survey and repair program which identified 10 more
pipe segments for testing. Each of these were removed
from the pipeline for testing, and replaced. (V. 43 at
6513-16; V. 72 at 10565-717; V. 133 at 19388).
In 1985, the County conducted another 150 psi
pressure test on approximately three quarters of the
pipeline. The pipeline passed this test without incident.
(V. 43 at 6515-20; V. 221 at 27168).
On June 1, 1989, during the trial, the County
repaired a leaking manhole in the pipeline. The leak
had been caused by blow holes manufactured in the rim
of the manhole. (V. 211 at 26903). County inspectors
had detected this manufacturing defect during the
installation process and documented it five times. The
County failed to correct the problem before accepting
the pipeline, however. (V. 259 at 29471, 29472). The
County knew about the leak itself as early as
October 19, 1977, but never notified Hill. Jd.
The pipeline originally cost the County
approximately $6.5 million. For its professional
engineering services, Hill was paid a fee equal to 5.62%
of the project cost, or $364,939.27 (5.628 x
$6,493,581.32). Judge Bryson’s final judgment awards
the County $19.8 million against both Hill and
Interpace, of which $17.8 million represents the cost of
replacing the entire 13.5 mile pipeline with a new line
having components materially different from those
originally contracted for. Judge Bryson declined to
2-26
clarify whether the award is joint and several, although
he stated on motion to amend the judgment that the
County was entitled to only one satisfaction. (V. 126 at
18860).
Summary of Argument
The trial judge was required to disqualify himself
following the presentation of timely motions to
disqualify made during the course of trial. The judge
had engaged in actions during the trial, and made
comments throughout the trial, which prejudiced Hill in
the presentation of its case and created a reasonable
fear in Hill’s principals that the judge was biased in
favor of the County. The motions for disqualification
which were presented by Hill were legally sufficient on
their face. Moreover, the trial judge made comments
and took actions foliowing presentation of the motions
which mandated his disqualification. E.g., MacKenzie v.
Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.
1990).
The trial judge erred as a matter of law imposing
tort liability on Hill. The County neither alleged nor
proved any tort independent of Hill’s contractual duties;
indeed, the County affirmatively identified Hill’s alleged
negligence by reference to its contractual obligations. In
the absence of a tort independent of contractual duties,
no tort recovery is permitted. Lewis v. Guthartz, 428
So.2d 222 (Fla. 1982). Nor is tort liability possible for a
breach of statutes creating no private right of action and
imposing obligations only on governmental agencies. In
any event, tort liability against Hill cannot be sustained
where, as here, there is only economic loss to the
2-27
pipeline itself, with nominal (if any) damage to other
property. Florida Power & Light Co. v. Westinghouse
Electric Corp., 510 So.2d 899 (Fla. 1987); AFM Corp. v.
Southern Bell Telephone and Telegraph Co., 515 So.2d
180 (Fla. 1987).
The trial court erred as a matter of law in
finding Hill liable for breach of its engineering contract
based on defects in the pipe segments manufactured by
Interpace and as a result of Interpace’s use of class IV
wire in pipe segments. Hill had no contractual
obligation to inspect the manufacture of pipe segments
being made by Interpace. Nor was the use of class IV
wire by Interpace a breach of Hill’s contract, since that
type of wire was in conformity with AWWA C-301-72
standards that Hill had specified. The trial court’s
determination that the County’s contract with Interpace
merged with the Hill Contract so as to impose
additional contractual duties on Hill is legally
unsustainable.
The trial court’s award of damages equivalent to
the cost of replacing the entire 13.5 mile pipeline with
improved components is not sustainable by law or by
the evidence. Hill has no tort liability whatsoever, and
its obligation for breach of contract, if any indeed
occurred, at most would warrant liability for the costs of
repair. The entire pipeline had been operating as
intended for twelve years at the time of trial, with only
one in-service break. No competent substantial
evidence was presented to sustain the trial court’s
conclusion that the entire pipeline must be dug up and
replaced. Moreover, no theory of law authorized the
trial judge to award damages for a new pipeline with
improvements and betterments that had not been
contracted for originally.
Argument
I, The trial judge was required as a matter
of law to disqualify himself.
Any request to disqualify a trial judge is a
serious endeavor, and any attempt to do so in the midst
of a complex and protracted trial has even more grave
implications for the justice system. After 10 months of
trial, the first 8 of which were taken up by the
presentation of the County’s case, Hill came to the
reluctant conclusion that it was not receiving a fair trial
from Judge Bryson/
Before filing a motion for disqualification, Hill
submitted the trial transcript to outside counsel
unaffiliated with the case for an evaluation of
impartiality. (V. 102 at 15313-318). After that attorney
confirmed that Hill’s fear of prejudice in favor of the
County was well-founded, Hill prepared and presented
its first motion for disqualification. Jd. What occurred
on presentation of the motion for disqualification, and
J In support of this point on appeal, Hill has created an
appendix to this brief which contains representative samples
of the trial judge’s prejudice. This Appendix of Prejudice
(cited as "App. Prej.") will provide the court with a sample
of what the record bespeaks about the reasonableness of
Hill’s concern.
2-29
its disposition, only exacerbated Hill’s worst fears of
prejudice +/
The legal bases for disqualification are identified
in Section A below. The fir. issue is whether Hill’s
motion for disqualification, on its face, was legally
sufficient and timely so as to require the judge to step
aside. An application of the facts in this case to the
legal tests for disqualification, demonstrating that the
motion was legally sufficient, is presented in section B
below. A second issue is whether, even if the motion
was not legally sufficient, Judge Bryson engaged in
conduct in response to the motion which required his
recusal. He did, and this point is discussed in section C
below.
A. The legal bases for disqualification
In MacKenzie v. Super Kids Bargain Store, Inc.,
565 So.2d 1332 (Fla. 1990), the Supreme Court
reiterated the time-honored requirement that facts in a
motion seeking to disqualify a judge need only show a
well-grounded fear that the movant will not receive fair
and impartial treatment from the judge. If the motion
does this, it is legally sufficient on its face and the judge
has no discretion -- he must step aside.
The standard of legal sufficiency is simple and
straightforward.
4/ Hill filed a second motion to disqualify based on the totality
of trial events through denial of the first motion, including
Judge Bryson’s post-motion actions and comments. (V. 25
at 3323-503).
2-30
In order to decide whether the motion is
legally sufficient, ‘[a] determination must
be made as to whether the facts alleged
would place a reasonably prudent person
in fear of not receiving a fair and
impartial trial.’ [Livingston] at 1087. The
legal sufficiency of the motion is purely a
question of law.
MacKenzie, 565 So.2d at 1334-35, quoting, Livingston v.
State, 441 So.2d 1083, 1087 (Fla. 1983); see also Rule
1.432, Fla. R. Civ. P. Three applications of this
standard are pertinent here. First, the judge has no
authority to pass on the truth of the allegations in the
motion. In assessing “— sufficiency, the alleged facts
must be taken as true” Bundy v. Rudd, 366 So.2d 440
(Fla. 1978); Townsend v. State, 564 So.2d 594 (Fla. 2d
DCA 1990); Brewton v. Kellt, 166 So.2d 834 (Fla. 2d
DCA 1964). In fact, any attempt to refute the
allegations of a motion to disqualify is disqualifying
conduct in and of itself. MacKenzie, 565 So.2d st 1339;
Gulfstream Park Racing Ass’n, Inc. v. Gale, 540 So.2d
196 (Fla. 3d DCA 1989); Stimpson Computing Scale Co.
v. Knuck, 508 So.2d 482 (Fla. 3d DCA 1987); A.T7.S.
Melbourne, Inc. v. Jackson, 473 So.2d 280 (Fla. 5th DCA
1985). The judge must "forego the pleasures of oral
condemnation." Hayslip v. Douglas, 400 So.2d 553, 558
(Fla. 4th DCA 1981) (Letts, J. concurring).
Second, the standard focuses not on the judge’s
perceptions or those of opposing counsel, but on the
perception of a "reasonably prudent person” in the
2/ Rule 1.432 provides that a judge “shall determine only the
legal sufficiency of the motion." (Emphasis added).
2-31
shoes of the litigant. MacKenzie, 565 So.2d at 1342
(Overton, J., concurring) (the question "is whether an
ordinary litigant would reasonably question the judge’s
impartiality”).
Third, disqualifying prejudice of a judge includes
prejudice against counsel as well as a party. Livingston,
441 So.2d at 1083; Hayslip, 400 So.2d at 553. Just last
year, this court applied this aspect of disqualification in
a counsel prejudice situation remarkably similar to the
facts here®/ Townsend, 564 So.2d at 594. A judge’s
tirade against counsel in open court, of course, itself
presents a legally sufficient basis for a reasonable belief
that the judge cannot be impartial toward the litigant.
McDermott v. Grossman, 429 So.2d 393 (Fla. 3d DCA
1983).
Judge Bryson violated every tenet of Florida law
on disqualification. (1) He himself Passed on the truth
of allegations contained in Hill’s motion. (2) HQ
allowed testimony from opposing counsel in
contravention of those factual allegations, including a
shouting tirade by counsel for the County challenging
the ethics, honesty, good faith and veracity of Hill and
$/ In Townsend the judge had declared: "I may be prejudiced
against counsel but not against your client.” 564 So.2d at
595. Judge Bryson declared in his written order denying
disqualification: "The statute for disqualification . . . pertains
to prejudice or bias for or against the parties in the
not believe that he has been, is, or will be prejudiced for or
against any of them. He .. . assures all of the parties that
they will receive a fair and impartial trial despite any feelings
which he might have had toward [Hill’s counsel] personally.”
(V. 24 at 3281-84) (emphasis added).
2-32
its counsel. (3) He tested the motion against his own
perception of fairness, rather than analyzing the
perception of a reasonably prudent lay person in Hill’s
position. (4) He acknowledged his prejudice against
Hill’s counsel in the belief that only prejudice to the
party itself is relevant to disqualification.
B. The motion was legally sufficient
on its face and timely.
The allegations of the motion of Judge Bryson’s
disqualification, supported both by appropriate affidavit
of Hill’s principal and by good faith certificates of
counsel, presented facts which were legally sufficient to
require disqualification. The allegations dealt with
comments and conduct during trial which generated in
Hill personnel an eminently reasonable fear of bias
against the company and its attorneys.
1, Demonstrated bias in favor of the
County’s Position.
The first incident of tilt toward the County
occurred at the outset of the trial, in opening
statements. Counsel for the County was given free rein
in opening statement over one and a half days to
comment extensively on the County’s interpretation of
the contracts which governed the proceedings. When
Hill’s counsel attempted to assert Hill’s position on the
same contractual provisions (in less than a half day of
opening statement), Judge Bryson interrupted him four
times to point out that he had already heard about the
2-33
contracts. (App. Prej. 1, pp. 391, 415, 426, 457). The
pattern was set.
In derogation of Hill’s defense that its
contractual responsibilities as engineer did not include
testing and inspection of materials at the pipe
manufacturing plant -- the very heart of the County’s
case -- Judge Bryson made clear that he had accepted
the County’s position and predetermined Hill’s liability
before any defense eviderice ow the issue was presented.
Addressing a former Hill employee, he stated:
THE COURT: [To Witness Henderson,
former Hill employee] I appreciate how
convenient it would be for you to be able
to have every design engineer, every
person that put pencil to parer, or put a
word processor to work on any piece of
paper that came out of [Hill], live in a
vacuum tube, never having inhaled the
odor of concrete, never having touched a
piece of slag or aggregate or sand, or
watched a piece of pipe being wired or
anything else.
But sir, I’m afraid I can’t let you
live that way.
(App. Prej. 2, p. 78).
Other instances of preconceptions against Hill
abound in the record. (App. Prej. 3, pp. 135-44, 151-65;
App. Prej. 4, pp. 1858-59; App. Prej. 5, 51-52). Worse,
Judge Bryson prejudged Hill’s liability based on his own
views regarding pipelines and their construction,
2-34
notwithstanding that no defense evidence had been
introduced on that subject. (App. Prej. 3, p. 162; App.
Prej. 6, pp. 650-54).
A lack of even-handedness and Judge Bryson’s
overt bias are clearly seen in his treatment of evidence
regarding the contracts and their interpretation, which
were the crux of the lawsuit. The County presented
volumes of evidence regarding the contracts and their
meaning. Hill objected to interpretive analyses contrary
to their plain reading. Judge Bryson overruled these
objections, but gave assurance that Hill too would be
allowed to develop testimony on contract interpretation.
(App. Prej. 7, pp. 941-42; App. Prej. 8, pp. 1136-37).
That proved not to be the case. Judge Bryson reneged
on his promise and, without objection from County
counsel, barred Hill’s attempt to introduce contract
interpretation testimony contrary to that presented by
the County. (App. Prej. 3, pp. 135-36, 140-43). By
accepting only the County’s analysis, Judge Bryson
fostered a recurring theme of applying a dual standard
to the admission of evidence, laying the groundwork for
his later distortion of those contracts and eviscerating
Hill’s opportunity to present its case.
2. Limitations placed on Hill’s
examination of witnesses.
During the 66 days during which the County
presented its evidence over a leisurely period of eight
months, Judge Bryson never curtailed the County’s
examination of witnesses or made critical comments of
its counsel. The exact opposite was true when Hill had
its turn at bat. Judge Bryson interrupted the
2-35
examination of Hill’s very first witness with a directive
that counsel limit the testimony to be elicited2/ (App.
Prej. 9, pp. 70-81). Hill’s next witness, its chief expert
witness on engineering standards applicable to this type
of pipeline project, sought to testify on the same subject
as the County’s chief expert witness had testified on
y/ THE COURT: Why don’t you ask him if he felt that they
met the standard of care in the design of a project and
engineering function, and quit?
sees
MR. BULL: We sat there for seven months, your
Honor, and this is our first day, our first morning --
THE COURT: Mr. Bull, we’ve been through -
everything that you’ve talked about, thus far, with
this witness, before.
MR. BULL: Well, I think my next question might
clear up some of --
THE COURT: Why don’t you ask him the one
question --
MR. BULL: -- John’s objection
THE COURT: -- What he thinks about his
opinions, as to the standard of care, as to whether it
met the contract, sit down, and let those people
cross examine him.
2-36
qi
three separate occasions over a period of six weeks*/
Hill’s expert was met with these chilling instructions:
THE COURT: Now, why don’t you get
him a copy of the plans that your client
8/ The court cannot fully appreciate the trial court’s bias
without having some insight into the dominant expert
testimony which forms the basis for the County-drafted,
unprecedented final judgment. That judgment accepts the
testimony of Mr. Robert Edmunds, a former Hill employee
who was called as an expert by the County, on virtually all
of the findings of negligence and contract breach in
connection with the pipeline. Mr. Edmunds’ qualifications
as an expert were not as broad as his opinions, however.
Mr. Edmunds is a University of Florida graduate, with a
masters degree in civil engineering. Before leaving Hill, he
had been a design project manager at Hill. Nonetheless, and
despite this seeming level of skill, in the course of some six
weeks on the witness stand Mr. Edmunds gave so-called
expert opinions on engineering, mathematics, contract
interpretation, quality control and testing of prestressed wire
and prestressed concrete pipe, metallurgy, statistics,
population studies and forecasts, hydraulics, cost estimating,
standards for pipe, pipelines and wire, engineers’ standards
of care, and hydrology -- to name a few. There was no
subject area that he did not deem himself an expert. ("Q.
Well, let me try to make it simple. Is there any aspect of
this case, engineering aspect, that you don’t think that you
have expertise in? A. I can’t think of an engineering aspect
of this case that I don’t have expertise in"). (V. 33 at 4878).
A more circumspect and neutral judge would have found his
testimony in several of these areas to be beyond Edmunds’
realm of expertise, or at least not singularly controlling
against Hill in light of the very credible, contradictory
testimony of experts (some of whom were other County
experts) who were well-qualified in the fields as to which
they opined.
2-37
designed in system, have him look at
them, ask him if they met the standard of
care, sit back, admire your work?
Because these guys are going to paw on
him for the next half day. Now, I don’t
want to have to hear it twice.
ec"
THE COURT: Why don’t you hand him
a copy of the plans and say, ‘Have you
examined the plans?’ And if he says ‘no,’
everybody in the place is going to fall off
of his chair. And say, ‘Do the plans meet
the standard of care, or did they meet the
standard of care at the appropriate time?’
And then let’s get on with it.
Because Mr. Allen or Mr. Seane,
or both of them, or Mr. O’Brien, or
whoever, I’m sure, are going to have a lot
of questions in that area.
So let’s take a ten minute recess.
And possibly you can concentrate that
Strategy and, perhaps, save a day of this
man’s time, as well as mine.
(App. Prej. 10, pp. 44-46).
During later examination of this same witness on
the third day of testimony, Judge Bryson angrily
interrupted Hill’s examination by again advising that
counsel for Hill should frame questions in the manner
he (Judge Bryson) recommended and then "sit down."
(App. Prej. 3, pp. 137-39).
The pattern continued. Hill’s fourth witness, an
engineer, was testifying on the standard of care. The
County had been accorded unlimited time and freedom
in presenting testimony on this issue. Judge Bryson
pointedly suggested that Hill "can, with about three
questions dispatch [the witness] from direct
examination.” He even proposed the questions to be
asked, who looked at the plans, he reviewed Mr.
Henderson’s work, and he found that it met the
standard of care." (App. Prej. 11, pp. 41-42).
Hill’s fifth witness fared no better. He was cut
off at the beginning of his direct testimony by an angry
Judge Bryson shouting
THE COURT: ... You're not going to
win or lose this case by a greater number
of witnesses or a lesser number of
witnesses. Now, why don’t we get to the
bare bones examination of this guy, which
will take about ten questions, and let’s get
him to cross examination, and get him off
the stand, and move to something else.
(App. Pres. 12, pp. 7-10). The County, of
course, had presented an unlimited
number of witnesses. See Hill’s initial
brief in Case Nos. 90-3562 and 90-3563,
appealing the cost judgment in this case.
2-39
3. Hostility toward and
embarrassment of Hill witnesses.
Judge Bryson was not only an obstacle to the
presentation of Hill’s case he affirmatively
demonstrated his hostility toward Hill’s witnesses. For
example, after listening to Hill’s primary expert witness,
Judge Bryson put this completely intemperate question
in his examination:
THE COURT: Sir, could I ask you one
question? I don’t mean to be insulting --
THE WITNESS: Yes, sir.
THE COURT: -- But I think it’s
something that’s dictated as a product of
the testimony of the last two days.
Do you believe in Santa Claus?
(App. Prej. 3, pp. 225-32). It takes no imagination to
assess the effect of this kind of remark on Hill’s
principals, its counsel or its other witnesses. See the
affidavit of witness Browning which accompanied the |
motion for disqualification. (App. Prej. 13). As |
another example, Judge Bryson interrupted the
examination of Hill’s design engineer to state the
witness didn’t know what he was talking about, and to
suggest that he should not be in the design engineering
business. (App. Prej. 14, pp. 197-98; and see App.
Prej. 3, pp. 225-32).
Not content with merely intimidating Hill’s
witnesses, Judge Bryson himself examined them in a
2-40
way which was overtly hostile and prejudicial to Hill’s
defense. (App. Prej. 2, pp. 78-79; App. Prej. 3, p. 268;
App. Prej. 9, pp. 78-81, 123-50; App. Prej. 15, pp.
530-41, 549-54).
4, Curtailed cross examination.
One of the most essential rights accorded
defendants in a civil proceeding is cross-examination.
Judge Bryson, however, took it upon himself in this case
to restrict, interrupt and curtail Hill’s cross-examination
of County witnesses, all without objection by counsel for
the County. Specific examples were detailed in the
motion to disqualify. A few examples are repeated
here.
Judge Bryson cut off the impeachment of
Pinellas County chief expert witness, Robert Edmunds,
when, on Hill’s cross-examination, Mr. Edmunds
admitted to improperly signing and sealing certain
design engineering documents on a related pipeline
project, in violation of the very professional engineering
ethics and statutory requirements which Judge Bryson
later applied against Hill in his final judgment. (App.
Prej. 16, pp. 1779-81). He interrupted and terminated a
line of questioning on Hill’s cross-examination of an
expert for the County during questions as to the
witnesses’ credibility and qualifications to prepare a
report regarding the pipe. (App. Prej. 17, pp. 278-79).
He cut off Hill’s cross-examination of another County
expert as to a report placed into evidence during his
direct examination, by instructing Hill’s attorney to call
him back as your own witness. ... (App. Prej. 18, pp.
185-86). He chastised Hill’s attorney for
2-41
cross-examination of a County witness regarding the
City of Detroit’s approval of class IV wire in prestressed
concrete pipe. (App. Prej. 19, pp. 261-65). He
terminated Hill’s questioning of another County expert
which showed his testimony to conflict directly with that
of another County witness. (App. Prej. 20, pp. 472-73).
He terminated Hill’s cross-examination of the County’s
chief engineer regarding important admissions about his
understanding of Hill’s contractual duties on the
Original project, repeatedly initiating objections and
disrupting Hill’s presentation. (App. Prej. 21, pp. 80-85,
92-97). He interrupted Hill’s cross-examination of yet
another County expert by curtailing examination on
matters which had been placed in issue by the County
in its direct case. (App. Prej. 22, pp. 52-53). He
interrupted Hill’s impeachment and cross-examination
of the County’s chief expert to argue in support of the
County and to protect the witness. (App. Prej. 23, pp.
43-44),
County counsel and Judge Bryson attempt to
explain away and justify these multiple disruptions of
the defense case as normal judicial involvement in a
bench trial. They may view them that way (incredibly),
but as a matter of law they must be viewed from the
Perspective of Hill personnel sitting in the courtroom,
asking themselves whether they were getting cold
Neutrality and a fair trial from the presiding (and
deciding) judge. Because these ordinary litigants did
Not reasonably believe from this cumulative behavior
that they were getting a fair trial, it matters not whether
the judge himself or opposing counsel can now put a
Plausible "spin" on this courtroom behavior.
The motion to disqualify was legally sufficient. It
was also timely. The motion asserts a series of actions
and comments by Judge Bryson which occurred over
several months. As these hostile comments and actions
poured forth from the bench, they impacted the
presentation of Hill’s defense to an extent that gave rise
to a gnawing concern by corporate principals that a
pattern was unfolding. That concern became a
legitimate and well-founded fear going into the eighth
and ninth months of the case, when Hill and its counsel
were repeatedly rebuffed in their presentation of the
defense case.
Hill had been circumspect in not acting earlier
on comments and actions which suggested Judge
Bryson’s bias in favor of the County and hostility to
Hill’s attorneys, but the time for circumspection finally
passed. Hill’s concerns about bias finally heightened
into the realty that Judge Bryson was indeed hostile and
prejudiced against Hill and its counsel. Under these
circumstances, the motion was both timely and in good
faith?’ See Lamendola v. Grossman, 439 So.2d 960,
961 (Fla. 3d DCA 1983) (motion was filed without
inordinate delay “under the circumstances of this case”);
Lake v. Edwards, 501 So.2d 759 (Fla. 5th DCA 1987)
(motion was timely although filed when all that
remained of the trial was the court’s ruling on a motion
for new trial).
2/ That the motion was filed in good faith is evident both from
the restraint exhibited by Hill in not filing the motion
earlier, and by Hill’s submission of the trial transcript to
non-trial counsel for a pre-filing, independent evaluation.
2-43
of Disqualifying conduct in addition
to legal sufficiency of the motion.
Even were the court to hold that the motion was
not legally sufficient such as to require disqualification
upon its presentation, the post-filing conduct and
comments of Judge Bryson unquestionably compelled
his disqualification.
When Hill presented its motion to disqualify,
Judge Bryson’s immediate response was disagreement
with the accuracy of the allegations of the motion!”
and a challenge to counsel’s good faith in presenting
it2/ Judge Bryson then stated that the motion
reminded him of a parable about the good samaritan
who gave a hungry beggar a ham, and who was robbed
by that beggar the next day using the hambone. (V. 101
at 15193). Hill’s representatives viewed that
commentary as meaning that Judge Bryson put Hill in
the same category as a thief -- devastating
characterization of the defendant from a supposedly
40/ —__Judge Bryson indicated that he would have to go back and
look at the testimony transcript for nine months of trial,
which could only mean that he did not intend to accept the
allegations of the motions as true for the purpose of his
ruling. (V. 101 at 15192). He then declared that some of
the matters contained in the motion “are taken totally out of
comtemt....°
4/ Immediately following the oral presentation of the motion,
Judge Bryson stated to Mr. Schooley, counsel for Hill, that
the motion and matters contained in the motion "exceed the
duties and boundaries and parameters of advocacy, but go
into another area which I would charitably not describe.”
Id.
2-44
neutral magistrate. Judge Bryson then concluded
Proceedings for the day.
The next morning when court convened, Judge
Bryson offered Hill’s counsel (not Hill itself) the
Opportunity to withdraw the motion for
disqualification” (V. 102 at 15197). When counsel
declined to withdraw the motion, Judge Bryson took
issue with the truth of the allegations of the motion,
despite a twenty-four hour recess in which he said he
had researched the law of disqualification. He then
characterized the motion as containing "lies" of the most
offensive type, in these words:
Many years ago, someone told me that
there were basically two types of untruths;
42/ Believing that the withdrawal offer was directed at Hill,
Hill’s counsel declined to withdraw the motion on behalf of
the client. Judge Bryson immediately snapped:
No. I’m talking to you. I’m not talking to
Hill. You are the lawyer. They are the
client. And I’m affording you ac a lawyer,
the opportunity to withdraw the motion.
(V. 102 at 15197). This comment becomes significant when
coupled with other remarks made by Judge Bryson
regarding counsel for Hill, and the recitations in his later
order denying disqualification to the effect that presentation
of the motion was contrived, that the Opportunity to
withdrew was afforded because Judge Bryson did not believe
that the motion was filed in good faith, that defense counsel
had attempted to "goad" the judge into making intemperate
remarks requiring recusal, and that disqualification pertains
only to prejudice against-parties and not their lawyers.
(V. 24 at 3281-84).
2-45
lies and damn lies. But you, sir, in your
motion, have crystallized yet a third
ome.... You, sir, in your motion, have
taken liberties with the truth that a
common curr [sic] would not take with a
streetside fireplug.
(V. 102 at 15198-199).
Judge Bryson then recessed court to give counsel
for the County an opportunity to respond to the motion.
That response came five days later when counsel for the
County was afforded an uninterrupted period of roughly
three hours to challenge the good faith of Hill’s counsel,
to call opposing counsel a liar and unethical, to
controvert the facts forming the basis for Hill’s good
faith belief of prejudice, to conduct a tirade against the
defendants and their counsel, and to attempt to explain
away the disqualifying comments made by Judge Bryson
after presentation of the motion?” (V. 102 at
15210-214, 15218-224, 15229-233, 15236-237, 15239,
15243, 15261-262, 15264-266, 15269, 15293-294). The
following day, Judge Bryson issued his order denying
disqualification, embracing several of the points
presented by counsel for the County.
Judge Bryson’s course of conduct after receiving
the motion to disqualify was in and of itself
disqualifying, irrespective of the legal sufficiency of the
motion. Bundy v. Rudd, 366 So.2d 440 (Fla. 1978);
43/ __ On four, separately acknowledged occasions during his long,
denunciatory speech, counsel for the County noted for the
record that he had raised his voice. (V. 102 at 15222, 15224,
15234, 15236).
2-46
MacKenzie, 565 So.2d at 1339. His breach of every
legal requirement in a disqualification setting is
overwhelming.
1, Challenges to the accuracy of the
factual allegations, evaluating his
own subjective views rather than
the perception of the client, and
demonstrating hostility toward
Hill’s counsel.
Judge Bryson’s first response to Hill’s motion
included a declaration that some of the factual matters
contained in Hill’s motion were "taken totally out of
context," and would require him to go back and look at
the testimony and transcript of eight or nine months of
trial. (V. 101 at 15192). This was followed by the good
Samaritan parable which expressed his personal feelings
of betrayal and dismay toward Hill and its counsel. Id.
at 15193.
Perhaps personal disappointment and resentment
can be explained away during a protracted trial, or even
under the circumstances of Hill’s presentation of the
motion. But nothing can explain or justify Judge
Bryson’s comment, after twenty-four hours of reflection,
that the motion contains not "lies" or "damn lies," but an
even more damning form of utitruth. Later at the same
hearing Judge Bryson made clear that he believed he
had the absolute right to challenge the factual
foundation for a motion to disqualify if he knew facts to
the contrary. (V. 102 at 15203-204). His belief was
wrong. The rule in Florida is that facts alleged must be
2-47
taken as true, and the sole issue is the legal sufficiency
of the motion in light of those facts24/
Judge Bryson is condemned both by his record
comments in response to the motion and by his formal
order denying disqualification -- the latter adopting
justifications and facts from the testimony of County
counsel. In that order, he reiterated his view that some
quotations in the motion were taken out of context and
went on to state:
It is the view of the court, however, that
said conduct, as so reflected, does not
exhibit any prejudice or bias . . . and,
therefore, is legally insufficient toward
disqualification.
(V. 24 at 3282) (emphasis added). Judge Bryson clearly
applied an erroneous legal standard. The test is not
whether Judge Bryson thought his conduct was
prejudicial. The test is whether a lay person in the
position of Hill reasonably believed that the conduct
reflected bias2¥/
14/ Even counsel for the County agreed with Hill and told
Judge Bryson that the facts must be taken as true even if
they are known not to be. (V. 102 at 15265-266).
435/ In his order denying disqualification, Judge Bryson
reiterated his personal, subjective evaluation of his own
attitude by declaring that he has not, had not and will not
be prejudiced for or against any of the parties. (V. 24 at
3284). Again, even counsel for the County knew that the
proper test for disqualification is not predicated on a trial
judge’s personal evaluation of his own fairness: [i]t’s not for
(continued...)
2-48
Bo eee
Os tet
In his order denying disqualification, Judge
Bryson made no bones about his pique with Hill’s
counsel. He reiterated (directly from the diatribe of
County counsel) "that counsel for Hill deliberately
contrived a means to attack the court’s integrity . . . and
that said conduct on the part of defense counsel was an
attempt to goad the trial judge into making intemperate
remarks [as a basis for disqualification]." Jd. He
acknowledged he made "intemperate remarks relevant
to the good faith and ethics of [Hill’s counsel]" after his
twenty-four hour period of reflection following
presentation of the motion, and he recounted his
personal belief that the parties will receive a fair trial
"despite any feelings which [he] might have had toward
Mr. Schooley personally." Jd. at 3284.
Judge Bryson capped his order with the legally
unsound view that disqualification pertains only to bias
or prejudice against parties, and not their lawyers. Id.
Contrary to his view, however, both the Supreme Court
and this court have said that prejudice or bias against
counsel for a party is a basis for disqualification.
Livingston, 441 So.2d at 1083; Townsend, 564 So.2d at
594.
43/(.. continued)
you to judge whether you subjectively in your mind you [can
provide a fair trial], but whether taking the facts as true, do
these people have a well-founded belief that they are not
going to get a fair trial?" (V. 102 at 15301).
2-49
2. Tirade on the record and testimony
on the truth of the allegations.
With Judge Bryson’s blessing, counsel for the
County was permitted to conduct the tirade against
Hill’s counsel which Judge Bryson himself was barred
from delivering. (V. 102 at 15210-313). It makes no
legal difference that he used County counsel to
accomplish indirectly that which could not be done
directly, however. Tirades prompted by the acts of
counsel are forbidden (see McDermott, 429 So.2d at
393), and the authorization for opposing counsel to
testify in opposition to the facts alleged is disqualifying
in and of itself? Clark Auto Leasing & Rentals, Inc.
v. Lupo, 547 So.2d 1016 (Fla. 4th DCA 1989). The
substance of County counsel’s wrath was clearly adopted
as his own in Judge Bryson’s order denying
disqualification, including challenges to the truth of the
factual allegations in Hill’s motion.
For example (although this list is not exhaustive),
counsel for the County contested the motion’s assertion
that the trial was conducted at a leisurely pace over six
months by testifying that the pace was in part dictated
by Judge Bryson’s poor health. (V. 102 at 15233-234;
see also Jd. at 15254). County counsel addressed the
out-of-court discussions between Judge Bryson with
persons favorable to the County’s position in the
lawsuit, testifying from personal knowledge that those
16/ Counsel unabashedly expressed his intent to testify, as
opposed to presenting legal argument. He declared more
than once that counsel would be “making a record.” (V. 102
at 15239-243, 10968). He even insisted that he wanted the
judge to make “findings” (of fact). Id. at 15256.
2-50
Bid aa a
conversations had nothing to do with the case. Id. at
15236. He testified to his personal view that Judge
Bryson was a gentlemen, scholar and an understanding
person, based on his personal experience with the judge
in a prior matter. Jd. at 15239. He addressed the
allegation of a close personal relationship between
himself and Judge Bryson, testifying as to the facts of
that relationship. Jd. He addressed a concern
expressed in the disqualification motion regarding Judge
Bryson leaving the bench for the testimony of one of
Hill’s witnesses, by testifying as to the circumstances
that surrounded the occasion. Jd. at 15285.
The Supreme Court’s clear directive from
Livingston, reiterated in MacKenzie, is that: "The legal
sufficiency of the motion is purely a question of law."
MacKenzie, 565 So.2d at 1335. A judge is not
authorized to challenge or dispute the truth of the
allegations in a motion to disqualify. Judge Bryson
violated that simple standard and by so doing mandated
his disqualification.
2-51
Il. Hill is not liable to the Counts under any
theory of law2”/
In its final judgment, the trial court found Hill
liable to the County both for negligence and for breach
of contract. Neither basis to impose liability is legally
tenable. Notwithstanding recitations of fault in the final
judgment, Hill breached no common law duty. Nor did
Hill breach any contractual obligation to the County.
A. Hill has no tort liability to the
County.
For several independent reasons, it was error for
the trial court to find that Hill had a non-contractual
duty to the County which was breached and caused
damage.
1, Hill committed no tort independent
of its contractual duties.
In Florida, a breach of contract, no matter how
egregious, cannot give rise to a tort. Lewis v. Guthariz,
428 So.2d 222 (Fla. 1982). A tort action between
i Without further elaboration here, Hill adopts the argument
of Madison Management Group. Inc. With respect to the
bar of the statute of limitations against County claims based
on the County’s actual knowledge of the use of class IV
wire, the use of mortar coating, the use of Florida
aggregates and that Interpace had not sent the County an
“Affidavit and Certification of Compliance with AWWA
C-301-72."
2-52
contracting parties may be brought only when a breach
is attended by additional conduct which amounts to a
separate, independent and distinct tort. Jd; J. Allen,
Inc. v. Humana of Florida, Inc., 571 So.2d 565 (Fla. 2d
DCA 1990); Electronic Security Systems Corp. v. Southern
Bell Telephone and Telegraph Co., 482 So.2d 518 (Fila.
3d DCA 1986); see AFM Corp. v. Southern Bell
TelePhone and Telegraph Co., 515 So.2d 180 (Fla. 1987).
In this case, the County neither pled nor proved
conduct in addition to, distinguishable from, or
independent of a breach of contract. Both the
negligence and breach of contract counts against Hill
are quite clear on this point. On the one hand, the
negligence claim simply states that it is premised on
conduct purportedly required by the contract:
66. The Defendant, CH2M HILL
SOUTHEAST, INC., carelessly and
negligently performed its duties owed to
the Plaintiff, PINELLAS COUNTY, under
their contract . . . in the following
manner: ...
(V. 8 at 972 9 66) (emphasis added).
On the other hand, the breach of contract claim
against Hill merely adopts and incorporates the
allegations of the negligence count to state a breach of
contract claim:
The Defendant, CH2M HILL
SOUTHEAST, INC.; breached its contract
with the Plaintiff, PINELLAS COUNTY,
in the manner described in Paragraph 66.
2-53
Id. at 979 1 70. No attempt was made to allege conduct
that would give rise to a tort. Jd. at 38-45.
The final judgment also confirmed that the
County’s negligence claim is predicated on the same
conduct that underpins the contract claims
The Court has also made findings of facts
on several claims against CH2M Hill for
breach of contract. In essence, Pinellas
County has made the same claims against
the engineer for negligently falling below
the standard of care .. . as Pinellas
County’s representative in monitoring the
construction of the pipeline.
The facts as found and the
conclusions. ... On [the] breach of
contract actions . . . support the
conclusion that CH2M Hill fell below the
engineering standard of care many
times.... Therefore, the County is
entitled to replacement damages against
CH2M Hill based upon the theory of
negligence.
(R. 4137-38, 4142) (footnotes omitted).
The County’s failure to allege or to prove
conduct in addition to and separate and distinct from a
breach of contract bars recovery in tort. Lewis, 428
So.2d at 223; J. Allen, Inc., 571 So.2d at 566; Electronic
Security Systems Corp., 482 So.2d at 519; see also AFM
2-54
Corp., 515 So.2d at 181. Hill’s motion for summary
judgment on this point should have been granted.
(V. 11 at 1363-65; V. 12 at 1590-97).
2. Hill had no statutory duties to the
Counts.
Despite identification in the amended complaint
that all of the duties Hill "negligently" breached were
duties "under the contract," the trial court found that
Hill had violated three duties that were independent of
the contract: a failure to comply with Chapter 403
governing DER permits, a failure to comply with
Chapter 471 governing regulation of professional
engineers, and a failure to comply with AWWA
specifications##” (V. 8 at 972; R. at 4141-42). The
purported breach of alleged statutory duties is nowhere,
in any fashion, alleged in the amended complaint. The
18/ The final judgment does not identify all of the statutory
requirements that it finds Hill violated. (R. at 4441). The
court 9 failure to identify all provisions purportedly violated
is understandable since they were not alleged in the
complaint. (V.8 at 935-55, 972-79). In a memorandum of
law filed by the County on the issue of negligence, the
County argued that Interpace and Hill had violated an
independent duty by failing to comply with local health
department permit requirements as required by sections
403.850-.864 of the Florida statutes and the administrative
rules promulgated thereunder. (V. 11 at 1378 1413). Those
provisions and rules regulate drinking water quality and
according to the County, required Interpace to follow
AWWA C-301, the standard which the final judgment
concludes was not followed. Presumably, the court was
referring to those same provisions in the judgment, although
they are unidentified.
2-55
County’s failure to allege these "independent" duties, of
course, absolutely bars recovery for their purported
violation. E.g., Porter v. Sprague, 99 Fla. 371, 126 So.
759 (1930); Freshwater v. Votter, 511 So.2d 1114 (Fla. 2d
DCA 1987); Lee County Bank v. Winson, 444 So.2d 459
(Fla. 2d DCA 1983), rev. denied, 451 So.2d 851 (Fila.
1984).
Even if the County had pled that Hill had
negligently violated statutory "duties," there would still
be no liability for at least two reasons. First, and most
obviously, Hill’s obligation to obtain a DER permit and
to comply with that permit was not an independent
duty; counsel for the County in fact elicited testimony
that this was an obligation encompassed by the
contract?” (V. 97 at 14492-493).
Second, neither the statutory provisions
governing DER permits (Chapter 403) nor those
Ly Q. [By the County]: Do you have any recollection, as
you sit there, of ever, ever, ever, filing, in compliance with
this provision [of the DER/public health department's
permit], a document, with the county health department,
saying that you had inspected the protect, and it was
complete for conformity to the plans and specifications, as
approved?
A. Not that I recall.
Q. [By the County]: And that was your duty and
responsibility under the contract with the county, was it not,
sir?
A. Yes, sir.
(V. 97 at 14494) (emphasis added).
2-56
provisions regulating the licensure of professional
engineers (Chapter 471) confer private rights of action
on individuals or entities such as the County. Chapter
403, which governs drinking water quality, provides for
the enforcement of DER permits solely by DER. See
§ 403.161, Fla. Stat. (1989) (creating liability to the
state); § 403.121, Fla. Stat. (1989) (establishing judicial
and administrative remedies for enforcement bs DER);
§ 403.131, Fla. Stat. (1989) (providing injunctive relief
to DER); § 403.141, Fla. Stat. (1989) (creating civil
liability to the state for violation of chapter 403).
Chapter 471 creates a Board of Professional Engineers
within the Department of Regulation and charges that
board with responsibility for enforcement of Chapter
471. See $§ 471.007, 471.008, 471.031, 471.033, 471.035,
Fla. Stat. (1989). Enforcement of section 471.025 -- the
provision which the trial court concluded created an
independent duty between Hill and the County - is
assigned exclusively to the Board of Professional
Engineers through section 471.033.
Where the legislature has declined to create a
private right of action, Florida courts are reluctant to
imply such a right even where the complaining party
appears to be in the class of persons whom the statute
2-57
was intended to protect®/ Colonial Penn
Communities, Inc. v. Crosles, 443 So.2d 1030 (Fla. 5th
DCA 1983), rev. denied, 450 So.2d 486 (Fla. 1984).
Since the statutory provisions governing both DER
permits and engineer licensure do not create any
private rights running to individual citizens, any failure
by Hill to comply with those statutory requirements ,
could not, as a matter of law, violate an independent
duty between Hill and the County that would support a
negligence claim. As for the purported failure to apply
appropriate standards to include AWWA standards
where applicable, that too fails to rise to the level of an
2/ Although no Florida decision has yet expressly detailed the )
criteria relevant to determining whether a private right of
action should be implied, the United States Supreme Court .
has identified four relevant factors (only three of which .
would apply to a state court) for making such a
determinations first, whether the plaintiff is one of the class
for whose especial benefit the statute was enacted; second,
whether there is any indication of legislative intent, explicit
or implicit, either to create such a remedy or to deny one;
and third, whether it is consistent with the underlying
purposes of the legislative scheme to imply such a remedy :
for the plaintiff. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080,
45 L.Ed.2d 26 (1985).
All three tests are flunked in this case. Neither Chapter 403
nor Chapter 471 “especially” benefits, and neither creates a
right in favor of private entities such as the County. There
certainly is no indication that the legislature intended to
create a private remedy in cither of these chapters, and the
remedy sought by the County does not aid the primary goal
advanced by either Chapter 403 or 407. An award of
damages to the County will neither affect the quality of the
County's drinking water nor prevent an unqualified engineer
from continuing to practice engineering.
2-58
independent duty which would support a tort claim2)/
(R. 4141); see Lewis, 428 So.2d at 223; J. Allen, Inc., 571
So.2d at 566; Electronic Security Systems Corp., 482
So.2d at 519. The obligation to comply with AWWA
standards (where applicable) was imposed by contract.
(V. 128 at 10942 A3, E2; Jd. at 19043 p. 15060-1, 2
[REV]; Jd. at 19045).
3. The County Presented no proof of
damages sufficient to support a
tort recovery.
The County not only failed to plead and to prove
tortious conduct separate and distinct from a breach of
contract, it also failed to establish damages that would
support a tort claim. Both this court and the Florida
Supreme Court have held that a tort action cannot be
brought to recover for so-called "economic losses," as
opposed to personal injury or property damages.
[T]he damages sustained by [a] tort must
be of a particular kind.... ‘{W]ithout
some conduct resulting in personal injury
or property damage, there can be no
independent tort flowing from a
contractual breach which would justify a
tort claim solely for economic losses.’
John Brown Automation, Inc. v. Nobles, 537 So.2d 614,
617 (Fla. 2d DCA 1988) (citation omitted), rev. denied,
547 So. 2d 1210 (Fla. 1989), quoting, AFM Corp., 515
2i/ The County consistently alleged that AWWA specifications
were contract obligations. (V. 8 at 938, 943-57, 972-79).
2-59
So.2d at 180; see also Westinghouse, 510 So.2d at 899;
Strickland-Collins Construction v. Barnett Bank of Naples,
545 So.2d 476 (Fia. 2d DCA 1989). A tort claim cannot
be brought to recover for damage primarily to the
product itself, as distinct from injury to a person or
property.
The theory which bars economic loss recoveries
is basic: manufacturers in a commercial setting have no
duty in tort to prevent a product from harming itself.
Westinghouse, 510 So.2d at 901. Where the gist of a
claim is that a product failed to perform, causing
damage to itself, the claim for relief sounds in contract
and not in tort. /d.
These principles are equally applicable where
there is minimal damage to supporting or surrounding
property, incidental to the damage done to the product
itself. In Florida Power & Light Co. v. McGraw Edison
Co., 696 F. Supp. 617 (S.D. Fla. 1988), affd, 875 F.2d
873 (11th Cir. 1989) (table), for example, a transformer
exploded, destroying itself and causing damage to
surrounding walls, curbing and adjacent pipes. Relying
on the Westinghouse decision, the court concluded that
those damages were minimal and not compensable in
tort -- that is, they did not constitute sufficient damage
to other property to remove the action from the policies
and principles governing economic loss in contract
actions.
Here, as in Florida Power & Light, the damage
sustained was almost wholly to the product itself - the
pipeline. (V. 82 at 12160-161; V. 83 at 12178, 12181,
12286; V. 186 at 24288, 24291). There was no injury to
any person. By law, the County’s action was for
2-60
economic loss, i.e., damage to the pipeline itself, and
the County was limited to recovery on its contract
claim.
The principles underlying the economic loss rule
apply in Florida no matter how suddenly a product
damages itself. A so-called “calamitous event” exception
which has been accepted in some jurisdictions was
rejected by the Florida Supreme Court when, in its
Westinghouse decision, the court approved East River
Steamship Corp. v. Transamerica Delaval, Inc., 476 USS.
858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). See
Westinghouse, 510 So.2d at 902. The high court in that
case both adopted the economic loss rule and rejected
the calamitous event exception. East River, 476 U.S. at
870. The trial judge exceeded his authority when he
accepted the County’s contention that the suddenness of
the one, in-service break in the pipeline exempted this
action from the economic loss rule.
Nor was the trial court on-firm legal ground
when it created out of thin air the notion that, as a
matter of law, Westinghouse and AFM did not apply to
contracts for the purchase of professional skill,
judgment and expertise such as contracts with
professional engineers. (R. at 4137; v. 12 at 1590-97).
Westinghouse in fact turned in part upon a claim for
negligent design of the nuclear-powered steam
generators, and the plaintiff had specifically alleged a
failure of professional expertise and skill:
Florida Power & Light alleges that
Westinghouse negligently designed and
manufactured the steam generators, failed
to provide proper operating instructions,
2-61
and failed to warn of potential problems.
Further, Florida Power & Light claims
that Westinghouse knew that Florida
Power & Light was relying on their
proffered expertise in nuclear power and
their conduct was the direct cause of
Florida Power & Light’s injuries.
Westinghouse, 510 So.2d at 900 (emphasis added).
Despite these alleged breaches of professional skill,
expertise and duty, the Westinghouse court held that no
tort action would lie absent a claim for damages for
personal injury, or damage to property outside the
scope of the parties’ contract.
AFM also addressed the professional services
issue, and made no exception to the announced rule on
tort claims for economic damages. In AFM, the court
actually extended its earlier announced rule in
Westinghouse to service contracts in general.
B. Hill is not liable for breach of
contract.
The County’s final judgment against Hill hinges
on three alleged breaches of contract. For one thing,
the court held that Hill had contracted to inspect the
manufacture of pipe segments based on the County’s
contention that references to “contractor” and the
"construction site” in the Hill Contract are not
references to the pipeline installation process, but
rather are references to the pipe segment
manufacturing process. For another, the court held that
Hill had contractual duties under the Interpace
2-62
es) eee cata Ne —~:
5 pawn
Contract -- a document entered into between the
County and Interpace nearly two years following
execution of the Hill Contract -- based on a theory of
document "merger." The court additionally ruled that
Hill had breached its contractual design responsibilities
by allowing Interpace’s use of class IV wire for the
pipeline, and by underdesigning the operating pressure
for pipe segments. None of these bases for finding a
contract breach is supportable in the record or in law.
1, Hill had no contractual duty to
inspect the manufacture of Pipe
segments.
The trial court’s final judgment concludes that
Hill was required as part of its Item A design duties to
perform engineering services in connection with the
process of manufacturing pipe segments. There is no
such directive in Item A of the Hill Contract. The trial
judge was persuaded that the terms "contractor" and
"construction site” in the Hill Contract were references
to the pipe segmeat manufacturing process, rather than
to the pipeline installation process. A plain reading of
that document belies that interpretation, however, and
the context of its drafting and execution confirms that
the language used could only mean the contrary.
The language in Item A of the Hill Contract
makes clear that Hill’s design functions encompass
duties relevant to the design of the pipeline system, not
the manufacture of the pipe segments. For example,
Item A-1 anticipated that Hill would consult regarding
“property, boundary, right of way, topographic and
utility surveys," each patently relating to the location of
2-63
the pipeline. Consistently, Item A-3 called for Hill to
draft specifications and schedules for the proposed
improvements, meaning, of course, the pipeline system.
(V. 128 at 19042).
References to "construction site” and "contractor"
in Items A and B can only relate to installation of the
pipeline. Item A-5 directs Hill to “advise prospective
bidders, suppliers of construction materials, and
equipment manufacturers." Jd. at 19042. To "advise"
prospective bidders, suppliers and equipment
manufacturers could not have meant to inspect and
oversee pipe segment manufacturing, for in 1975 when
the Hill Contract was signed, there was no pipe segment
manufacturer. None had even bid the job, let alone
been selected to manufacture pipe segments.
In Item A-6, Hill was made responsible for
"canvassing construction proposals, and [making]
engineering recommendations in awarding of
construction contract or contracts." Jd. Use of the
word "construction" in Item A-6 correlates with the
identification of bidders, suppliers and manufacturers in
Item A-S, relating to advisory services for prospective
parties.
Just as plainly, Item B also identified services to
be performed by Hill which related only to installation
of the pipeline. All paragraphs in Item 8 discuss phases
and features of procedures common to a contract
between e consulting engineer on the one side, and an
owner-general contractor on the other, such as visits to
the construction site (Item B-1), preparation of routine
change orders and stop work orders (Item B-4),
recommendations regarding final acceptance of
2-64
construction work (Item B-6), and completion of a set
of prints for each construction contract changed during
the construction process (Item B-7). Significantly, the
concluding, unnumbered paragraph of Item B provided
that Hill’s professional services during construction were
not to include “the testing of materials or the ishi
of resident project representatives, field engineers, and
inspection personnel." It is impossible to reconcile the
installation-oversight duties of Hill with an obligation to
control the manufacturing process when the contract
expressly excluded materials testing and furnishing
inspection personnel Item C of the Hill Contract
proves the point further. The first paragraph of Item C
proposes that Hill would furnish "resident engineer"
services "to observe the construction work of the
contractor on a daily basis." (Emphasis added). These
services were to have included:
field observation, inspection of materials
and work, . . . preparation of daily
progress reports, monthly summaries .. .
reviews, verifications and estimates for
payments to contractors.
The County never authorized Hill to perform Item C
services; instead, the County itself took direct
responsibility for all "resident engineer" tasks. (V. 76 at
11484; V. 77 at 11279-280, 11308-309; V. 96 at 14249,
14256). The second paragraph of Item C calls for
"on-site observations of the work and progress, and field
2/ The very location of the Item B exclusion is in the midst of
a discussion of “construction” duties and construction
“contractor” related to the installation of pipeline, not the
pipe segment manufacturer.
2-65
checks of materials and equipment." The "field checks”
provision with regard to materials and equipment again
confirm that Item C’s discussion of "construction"
related services is a discussion of matters to occur at
the pipeline installation site, not a pipe manufacturing
factory.
These plain readings of the language of the Hill
Contract are bolstered by the context of its drafting.
No one knew when the Hill Contract was signed in 1975
that the County would elect to save sales tax some two
years later by contracting directly with a pipe suppiier,
rather than going through a general contractor. Indeed,
the County’s primary contract negotiator acknowledged
that the Hill Contract was signed at a time when the
County intended to use a single contractor both to
purchase the pipe and to install the line. (V. 76 at
11177). Design phase supervisory services by Hill,
which were completed before a pipe supplier was even
selected, could not have plausibly been intended to
include pipe manufacturing supervisory services.
The plain language of the Hill Contract is at
odds with the County’s contention, as adopted in the
final judgment, that Hill’s engineering services required
supervision over pipe segment manufacture. It was
error for the judge to conclude that Hill breached a
contractual duty to perform pipe segment
manufacture-related duties.
2. Hill could not be held to a
contractual duty under the
County’s contract with Interpace
through the legal fiction of a
"merger" of two separate
documents.
A second basis for finding Hill in breach is the
final judgment’s legal fiction of "merger" of the Hill
Contract with the Interpace Contract#/ Hill was not
a signatory to the Interpace agreement. The latter was
signed almost two years after Hill’s contract. Not one
case is identified in the final judgment for the
proposition that a non-signatory to a contract is
obligated to perform duties identified within that
contract, let alone when the two documents are not
contemporaneous. The County argued its theory of
contract merger -- in order to bind Hill to the terms in
the Interpace Contract -- by invoking two doctrines of
judicial construction: "in pari materia and "construction
against the drafter." Neither legal theory has any sound
or legitimate application to this circumstance.
Not surprisingly, the final judgment does not rely
on any case in which the in pari materia doctrine was
utilized in a like circumstance. Its sole reliance is on
Standard Newspapers, Inc. v. Woods, 110 So.2d 397 (Fla.
1959), where a second, contemporaneous and
interdependent contract was signed because the first
would not have been entered without the other. Under
these circumstances, the court construed the second
23/ This fall-back thesis inherently acknowledges that the Hill
Contract, standing alone, could not support liability for
manufacturing-related duties.
2-67
ates
contract as being in pari materia with the first. Quite
clearly, there is no similarity between the Woods
situation and this one. Unlike Woods, Hill did not
benefit from the Interpace Contract. Unlike Woods, the
Interpace Contract was not contemporaneous in time
with the Hill Contract. Unlike Woods, the 1975 Hill
Contract was not contingent on the 1977 Interpace
Contract. The trial court’s acceptance of the County’s
second doctrine of judicial construction -- construing
agreements against the drafter -- is equally far afield.
That doctrine applies only where a signatory to an
agreement has drafted the document. The doctrine has
never been applied in Florida to impose duties on a
non-party. Again, the cases identified in the final
judgment reflect a very different situation -- the typical
circumstance of construing a contract against the
signator-drafter“/
The importation of a "merger" doctrine into this
case is ludicrous. As stated in Jn re: Estate of Samuel
Donner, 364 So.2d 742 (Fla. 3d DCA 1978):
Ordinarily, a contract cannot bind one
who is not a party thereto since to create
a valid contract there must be reciprocal
assent to a certain and definite
proposition.
(Citations omitted); see also Ogden v. Groves, 241 So.2d
756 (Fla. ist DCA 1970). Likewise, in Jenkins v. City
2/ Sol Walker & Co. v. Seaboard Coast Line R.R. Co., 362
So.2d 45 (Fla. 2d DCA 1978); Bouden v. Walker, 266 So.2d
353 (Fla. 2d DCA 1972); Allegheny Mutual Casualty Co. v.
State, 176 So.2d 362 (Fla. 2d DCA 1965).
2-68
Ice & Fuel Co., 118 Fla. 795, 160 So. 215, 217 (Fla.
1935), the court recognized that
A third party is not liable as a rule upon a
contract, express or implied, unless he was
one of the immediate parties to the
agreement or has become a party to it by
subsequent agreement with the original
parties.
The trial court’s conclusion -- that the
identification of engineering duties in the Interpace
Contract bound Hill to perform those duties -- should
be compared with the reasoning in Lawrence v. United
States, 378 F.2d 452, 461-62 (Sth Cir. 1967):
A person is not made a party to a contract
merely by being named and described in it
or merely by the fact that such a contract
is referred to in a second instrument in a
way to evidence that such person is a
party in another contract. This is
especially true if the parties are different,
are not identical, or there is an absence of
one or more significant elements of
identity.
(Footnotes omitted).
The Florida Supreme Court recently
demonstrated the narrow circumstances which must
pertain to tie together and merge two distinct contracts.
OBS Company, Inc. v. Pace Construction Corp., 558
So.2d 404 (Fla. 1990), involved a lawsuit between
subcontractor (OBS) and general contractor (Pace).
2-69
Pace alone was in direct contractual relationship with
the owner. OBS had only a direct contractual
relationship with Pace. When OBS sued, Pace
defended by asserting it had not been paid by the
owner, and therefore it should not have to pay OBS.
Because OBS’ agreement with Pace contained a
provision which expressly incorporated the agreement
between the owner and Pace as part of the Pace
contract with OBS, the court was able to link the two
agreements and require Pace (as signatory to both
contracts) to pay OBS. There is a complete absence of
any comparable incorporation by reference in this case.
The only common signatory to the contracts here was
the County, not Hill.
A case factually akin to this one is Bernard
Johnson, Inc. v. Continental Constructors, Inc., 630
S.W.2d 365 (Tx. 1982). In Johnson, a non-party
architect/engineer was charged with a breach of a
contract between the construction contractor and the
owner, based on the allegation that the non-party
engineer had assumed the obligations specifically
assigned to it in that owner-contractor contract. The
court rejected the attempted use of the
contractor-owner’s contract as a basis to impose liability
on the architect/engineer, finding it to be unheard of
and without legal support. The court lucidly explained
that the substantive law on breach of contract exists
because of the societal interest in having a person
perform his promises, whether express or implied, so
that actions for breach of contract "are inherently
possible against promisors only.” 630 S.W.2d at 369.
While duties for the engineer may have been expressed
in a contract to which it was not a party, due to the fact
2-70
it "was not in legal contemplation a party to the
contract, it owed no contract-based duty to [the
contractor]."*/ 630 S.W.2d at 370. The artificiality of
the court’s "merger" theory is exposed more vividly by
reviewing the language of the Interpace Contract, to
which Hill was not a party. That 1977 contract defined
Interpace as “supplier,” not the unnamed “contractor” in
the 1975 Hill Contract#/ The terms of the Interpace
Contract, moreover, were all keyed to engineering
services relative to post-manufacture activities when
pipe segments were delivered to the installation site.
For example, section C-03(a) of the Interpace Contract
provided that
All materials furnished, when not in
accordance with the intent of the Plans
and Specifications, will be rejected and
shall be removed immediately and replaced
by suitable and satisfactory materials. . . .
(V. 8 at 994 C-2) (emphasis added). This language
deals with the removal of pipe segments brought to the
2/ —_ Haddad v. Bagwell, 317 S.W.2d 781 (Tx. 1958), is a similar
case involving an owner’s claim against an architect where
the owner’s contract was solely with a contractor. That case
had the some outcome. The court held that the architect
was entitled to summary judgment in the owner’s suit since
he was not an immediate party to the contract, not one for
whose benefit it was made, and not in privity.
26/ Im fact, the term “constructing” in the definition of “supplier”
is expressly said to pertain “for purposes of this Contract”
[meaning the Interpace Contract]. A logical correlation of
the two contracts would identify Interpace as the “materials
supplier” or the “equipment manufacturer” mentioned in the
Hill Contract.
2-71
installation site for failure to meet design drawings,
plans and specifications.
Section C-03(a-1) authorizes the owner to stop
supply of the pipe "[i]f the supplier fails to remove any
defective materials . . ." (emphasis added), plainly
relating to delivered or installed pipes which proved to
be defective and were to be removed from the system.
Section C-03(b) places the burden on Interpace, as the
supplier, to confirm with the engineer through
independent testing that the pipe segments have passed
tests prior to delivery, and section G provides that
Interpace, as supplier, has agreed "to permit a
representative of the county, and/or its engineer . . . to
inspect the work in progress... ." (V. 8 at 1020 G-3
16). Interestingly, this latter section, which does
specifically relate to the manufacturing site, provides
only a right, not a du uty of inspection at the
manufacturing plant:
Finally, if the terms of these respective contracts
were doubtful as to the absence of any contractual duty
on Hill, and if there were a doctrine of merger in a case
such as this, the performance of the parties in relation
to the provisions of the contracts removes any possible
view of the contracts as requiring Hill to inspect the
2/ _ The County in fact inspected the manufacturing plant
repeatedly. (V. 96 at 14229-231, 14245-246, 14257-259,
14281). Section G-3 in the Interpace Contract also belies the
interpretation given the provision of Hill’s contract which
called for four monthly visits to the “construction site.”
Were those four visits actually meant to be to the factory,
then Hill’s mere option to visit the factory, as contained
2-72
pipe manufacture plant“/ The County was
designated as the recipient of any testing data to be
provided by the manufacturer. (V. 8 at 981; V. 128 at
19043 p. 1010-3, 15060-2 [REV]). If the County desired
additional laboratory testing of the manufactured pipe
segments and desired that testing be done by Hill, the
County was required to request those services
specifically under Item D of the Hill contract. The
County never did this2”/
In point of fact, the County had obtained tests of
components of pipe samples from Interpace’s
Lacoochee pipe manufacturing plant, and County
employees visited the Lacoochee pipe plant several
times. (V. 96 at 14229-231, 14245-246, 14257-259,
14281). The County even suspected that the aggregate
used to manufacture the concrete coating of the pipe
was inadequate. (V. 84 at 12412-413).
The Hill Contract and the Interpace Contract are
not legally or factually susceptible of merger, and the
parties’ course of performance directs a conclusion to
the contrary because the County reserved to itself and
in fact performed all "resident engineering” duties. The
2/ The final judgment wrongly concludes that if Hill was not
performing duties related to resident engineering at the
pipeline, then no one was performing those duties. The
County had itself assumed these resident engineering and
inspection services. (V. 96 at 14255-256).
2 Neither the Hill Contract nor the Interpace Contract
imposed a materials testing obligation on Hill. This was
Interpace’s obligation primarily, with an adjunct
responsibility of the County to obtain further materials
testing if it deemed necessary. (V. 8 at 995).
2-73
|
trial judge’s conclusion (acting through the County’s
mind and pen) that only Hill was available to protect
the County, is nowhere supported in the record or in
law.
3. Hill’s pipeline design was free of
defects.
a. Hill did not breach its contract in
relation to Interpace’s use of class
IV wire in pipe segments.
The trial court’s final judgment found that Hill
breached its contract by allowing Interpace to use class
IV wire. Class IV wire was appropriate under the
standards in existence at the time, however. The trial
court has applied 1909 opinion testimony to interpret a
1977 contract, notwithstanding that Class IV wire
conformed with AWWA C-301 standards when the
Interpace Contract was made. When Interpace
contracted with the County to provide manufactured
pipe segments, it agreed that segments would comply
with AWWA C-301 standards, and Interpace in fact
submitted shop drawings which specified that the pipe
segments would be manufactured in accordance with
AWWA specification C-301-72. (V. 128 at 19045).
That standard specifies wire conforming to ASTM
Designation A-227, but also provides that
wire with specified minimum tensile
strengths exceeding those in A-227, class
II, may be used if the wire meets the
other requirements for class II in that
2-74
ER Fa
—————
specification, and the pipe design may be
based on those higher strengths.
(V. 128 at 19041). By definition, class IV wire has a
higher minimum tensile strength than class II wire, and
it can be manufactured to meet all the other
requirements for class II set forth in A-227. (V. 112 at
16858-859, 16863, 16868-869; V. 248 at 28040 pp.
156-69).
The chairman of the committee which authored
AWWA C-301 in 1972 ("C-301-72"), Walter Neubauer,
testified that class IV wire was plainly allowed and
contemplated as a product meeting AWWA C-301-72.
(V. 112 at 16835-920). Two other individuals who sat
on the standards committee agreed that class IV wire
could be used under that standard. (V. 93 at 13749,
13767, 13772, 13792-796). That fact was even
acknowledged by the County’s own expert, John Kiefer,
and County experts who had tested the class IV wire
used in pipe segments on this project found that it
passed all specific A-227 test requirements. (V. 99 at
14738 pp. 156-59 and see this brief at p. 9, line 1-2).
Nonetheless, at trial the County arrayed a chorus
of so-called expert voices consisting of engineers and
metallurgists, none of whom ever sat on or participated
in the work of the standards committee, who took a
different view of AWWA C-301-72. This group
contended from their 1989 vantage point that the
standard should be read to permit tensile strengths
exceeding the class II minimum, but only within the
class II tensile range. (V. 39 at 5923-25 V. 46 at 6894,
6945-46; V. 50 at 7445-46; V. 60 at 8843; V. 168 at
21835 pp. 106-07, 116). This interpretation, of course,
2-75
iia ai
4
would make C-301-72 wholly redundant with A-227,
which already allowed for use of wire with tensile
strengths inclusive of the class I] maximum.
There was no testimonial dispute at trial among
standards experts on the acceptability of class IV wire.
The testimony of County witnesses who found a
different meaning in the language some 17 years after it
was written does not detract one whit from the fact that
a reasonable design engineer in 1977 would readily have
approved the use of class IV wire as being in
compliance with C-301-72. Their disagreement as to
what the standard would allow suggests, at best, an
ambiguity in its wording. But any engineer in 1977 who
believed there was ambiguity in C-301-72 and been
concerned on receipt of Interpace’s submittal sheet
identifying its intention to use class IV wire, logically
would first have contacted the drafting committee of the
standard to inquire regarding the committee’s intent.
The uniform testimony at trial shows the answer they
would have received class IV was perfectly proper
under AWWA C-301-72. Hence, it was clearly
reasonable for Hill to have accepted Interpace’s
selection of class IV wire in 1977 (V. 112 at
16858-861).
The trial court’s conclusion that class IV wire
was not authorized for this pipeline is also legally
defective. It contradicts the prohibition in Florida law
against a court’s reinterpretation of contract language
which is otherwise clear and unambiguous. See
2 Interestingly, the County’s own engineer, Mike Flanery, used
the same specifications both before and after this project
and allowed the use of class IV wire. (V. 84 at 12471-476).
2-76
Hamilton Construction Co. v. Board of Public
Construction, 65 So.2d 729 (Fla. 1983); Paddock v. Bay
Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA
1963). It makes Hill, in its role as design engineer, a
guarantor of the proper manufacture of pipe by
Interpace, contrary to Florida law that a design
professional’s obligations do not include the guarantee
of a perfect plan or a satisfactory result. Bayshore
Development Co. v. Bonfoey, 75 Fla. 455, 78 So. 507
(Fla. 1918). A design professional is obliged only to
perform contractual duties in accordance with the
professional "standard of care used by similar
professionals in the community under similar
circumstances." Lochrane Engineering, Inc. v.
Willingham Realgrowth Investment Fund, Ltd., 552 So.2d
228, 232 (Fla. Sth DCA 1989), rev. denied., sub nom.,
Anderson v. Willingham Realgrowth Investment Fund,
Ltd., 563 So.2d 631 (Fla. 1990); see also Ahimsa
Technic, Inc. v. Lighthouse Shores Town homes
Development Co., Inc., 543 So.2d 422 (Fla. Sth DCA
1989). The evidence was overwhelming that the
specifications drafted by Hill and ultimately utilized by
the County and Interpace as part of the Interpace
Contract, including those for class IV wire, were well
within the standard of professional care owed by a
design engineer in its contractual relationships=)/
3/ If accepted, the guarantee theory of the trial court would
usher in an age of unlimited liability for all engineers or
architects submitting design plans to be administered by
contractors and others. This very concern was
acknowledged in E.C. Goldman, Inc. v. A/R/C Associates,
Inc., 543 So.2d 1268 (Fla. Sth DCA), rev. denied, 551 So.2d
461 (Fla. 1989), as one which would curtail the entire
profession of consulting services, contrary to the public
(continued...)
2-77
b. Hill did not breach its contract in
relation to pipeline pressure.
The County’s ghost-written final judgment hints
that Hill breached a contractual duty by failing to
design a pipeline for equate at 150 psi. This is
another baseless conclusion“ The Hill Contract
incorporated the design assumptions of the County’s
Master Plan, which called for 100 psi operating
pressures only*” In any event, Hill specified (and in
turn Interpace manufactured) pipe segments in fact
designed to operate at 150 psi, with a protective surge
component to 210 psi. (V. 128 at 19043 pp. 15060-1
[REV]; Jd. at 19045). The County consistently has
operated the pipeline at or below 100 psi anyhow.
(V. 83 at 12238-240, 12246, 12293).
3)/(...continued)
policy of this state. The engineer or architect would be cast
as responsible party for the defect-free functioning of
numerous components manufactured by different companies
located in different places across the country.
32/ The County's evidence on this point is not a breach of a
1975 contract which called for 100 psi pressures, but rather
the speculation that pressures to 150 psi may be required at
some time in the future. (V. 83 at 12236-239; V. 84 at
12388, 12499-501).
33/ Other components of the pipeline such as meters, not just
the pipe segments, were also designed to operate below 150
psi. (V. 42 at 27704, 27705; V. 99 at 14786). This
integrated pipeline project was never conceived by Hill or
the County to operate at 150 psi, whatever operating
pressure over 100 psi the pipe segments may have been
manufactured to withstand.
2-78
Leal i I et ae A aS san At de Nt eas Peli
III. The trial court exceeded its authority in
awarding the damages equal to the cost of
replacing the entire pipeline with
improved components,
The trial court concluded that each and every
one of the 3,400 pipe segments manufactured by
Interpace contained manufacturing defects so as to
warrant immediate replacement of the entire 13.5 mile
pipeline. Hill, the design engineer which was paid
$365,000 for its services, was ordered to pay $17,800,000
as a replacement cost, plus another $1,447,832 for
structural improvements to the pipeline. Those awards
are erroneous on a number of bases, each alone
mandating reversal.
A. The trial judge improperly held
Hill liable for replacement of the
entire pipeline.
The replacement award of $17.8 million against
Hill is predicated on the trial court’s conclusion that
cach and every pipe segment in the entire pipeline
contained five "manufacturing defects”: (1) mortar
coating that is too porous; (2) insufficient slurry
encasing the wire wrapped around each pipe core;
(3) improperly cured cement cores; (4) improper
materials (aggregates) used in core manufacture; and
(S) defective wire used to wrap each pipe core. (R. at
4008-9; see also R. at 4010-62, 4083). Hill had no
2-79
connection whatsoever to the first four of these alleged
defects (Hill Init. Brief at IIB).
An award of full replacement cost because Hill
approved the use of class IV wire for the pipe segments
is preposterous. For one thing, Hill neither participated
in the design nor in the manufacture of that wire, which
took place in a facility located in Solon, Ohio, far from
where the pipe segments were fabricated. For another,
any replacement cost award is simply untenable on this
record. At best the County proved entitlement for
pipeline repair damage.
The predicate for every damage award, whether
sounding in contract or in tort, is to provide fair and
just compensation commensurate with the actual harm
occasioned by the breach or tort. Hanna v. Martin, 49
So.2d 585 (Fla. 1950); Bank of Miami Beach v. Newman,
163 So.2d 333 (Fla. 3d DCA 1964). Damages may only
be awarded where actual harm resulting from a breach
or tort can be demonstrated with reasonable certainty.
Saporito v. Bone, 195 So.2d 244 (Fla. 2d DCA 1967)
(the rule of reasonable certainty is applicable to
establishing the existence of injury or harm as well as to
the amount or extent of the loss); see also E.F.K. Collins
Corp. v. S.M.M.G., Inc., 464 So.2d 214 (Fla. 3d DCA
1985). Plaintiff bears the burden of establishing both
actual loss or harm arising £rom a breach or tort and
the extent of that loss measured in money. Saporito,
w/ Interpace alone chose the materials for manufacture of its
pipe cores, and was solely responsible for curing the cores
after manufacture. Hill also played no role in the
application of slurry to the cores and wires or in the mixing
and application of mortar to the pipe. Jd.
2-80
Oe ee a a ee ae
195 So.2d at 245; United Steel & Strip Corp. v. Monex
Corp., 310 So.2d 339 (Fla. 3d DCA 1975). The County
failed to carry its dual burden. Indeed, it knowingly and
intentionally made no attempt to do so.
The County claimed, and the final judgment
echoed, that under the terms of the County’s contracts
with Hill and Interpace, the County had contracted to
obtain a pipeline that would transport water to meet its
community needs for at least 100 years. (V. 8 at 957,
960, 978; R. at 3979, 3988-91). It was undisputed at
trial that the County’s pipeline had in fact transported
water that met the County’s needs for at least twelve
years. (R. at 4164; eg., V. 72 at 10708; V. 73 at
10832-836). The County contended, however, that the
pipeline was so riddled with defects that the County was
entitled to have the entire pipeline replaced, and that
full replacement must be made "immediately." (V. 8 at
959-64, 968-69, 979).
The County spent considerable money and time
at trial attempting to establish the existence of alleged
manufacturing defects. (V. 33-45, 101, 121; V. 41 at
6172-6325; V. 67-73). In contrast, it refused to present
any evidence whatsoever to establish the need for
immediate replacement, relying instead on a claim that
another rupture might cause public injury or harm.
(V. 70 at 10404-405; V. 72 at 10702-709; V. 73 at
10833-834). The trial court accepted the County’s
imminent harm theory without requiring proof that any
harm or injury had ever occurred or was reasonably
2-81
likely to occur, not even from the one and only rupture
in 19792 (R. at 4050, 4151, 4164).
The County’s inability to prove harm, and indeed
its refusal to even attempt to do so, is understandable.
By the time final judgment was entered, the pipeline
(alleged defects and all) had been operating on a daily
basis for twelve years, with the exception of one
in-service break in 1979 and one rupture in 1980 during
a pressure test performed for the qpecte purpose of
identifying problem pipe segments* (V. 35 at
5215-20; V. 73 at 10831-834). Consequently, at the time
of trial, the County had sustained no injury or loss from
Hill’s or Interpace is purported breach of contract,
other than repair costs relating to those two failures.
Unfounded speculation of possible future harm
to the public, needless to say, provides no substitute for
competent, substantial evidence of the pipeline’s
remaining useful life (the County’s real alleged "harm"),
and no legal basis for immediate replacement of entire
line. In Adler v. Seligman, 438 So.2d 1063, 1066 (Fla.
4th DCA 1983), the court reversed an award of
damages to reconstruct 42 stairwells where there had
been no showing of harm.
33/ The County made no effort whatsoever to show the
probability of a rupture in the future, or of the reasonable
probability of replacing the entire pipeline in the next 88
years. In fact, the County knowingly elected not to
undertake studies necessary to ascertain the future life of
the pipeline. (V. 70 at 10405-406; V. 72 at 10702-709).
26/ The County conducted two additional pressure tests in 1982
and 1985, and sustained no failures during cither test.
(V. 43 at 6499-501; V. 221 at 27162).
2-82
The damages here were improper because
they did not involve actual damages to
Seligman, but instead were in the nature
of damages for repairs which might occur
in the future. On retrial, Seligman shall be
entitled to recover future damages only if
it can be shown that the repairs will
necessarily occur and that Seligman will
be responsible for them.
(Emphasis added); see also Hanna, 49 So.2d at 587;
Saporito, 195 So.2d 245; E.F.K. Collins Corp., 464 So.2d
at 214; Bank of Miami Beach, 163 So.2d at 333.
Although the County was entitled to no award
beyond repair Camages, the final judgment holds that
the County was entitled to replace the entire 13.5 mile
pipeline for $17.8 million because there was a possibility
of harm to the public from future ruptures. (R. at 3987,
4009, 4016, 4020, 4050, 4151). That finding is
insufficient as a matter of law to support an award of
damages, let alone a replacement cost award, in the
absence of any evidenc€ whatsoever that the pipeline
would no sonaee deliver water as it had for the past
twelve years*=” Id.
31/ The County introduced no competent substantial evidence
to establish that the pipeline will incur another rupture
during its alleged remaining 88-year life, or that there is any
likelihood that a rupture during those 88 years will inflict
injuries on any member of the public. The totality of
competent evidence on this point is to the contrary. Dr.
Jerrell Thomas, an aerospace engineer who had worked as a
NASA engineer on the Redstone and Jupiter missiles, on
Saturn I and V, the Lunar Rover, Apollo-Soyuz, and the
(continued...)
2-83
The County’s contract with Hill does not
guarantee a flawless, failure-proof pipeline. See
Bayshore Development Co. v. Bonfoey, 75 Fla. 455, 78
So. 507 (1918); Lochrane Engineering, Inc., 552 So.2d at
228. Neither Interpace nor Hill guaranteed a pipeline
that would never sustain a disruption or failure in 100
years*/ Jd. The failure of one or more pipe
segments, or even the prospect of other such failures
over the prospective life of the pipeline, does not entitle
the County to replace the entire pipeline. Jd.; Adler,
438 So.2d at 1066.
37/(...continued)
space shuttle, was qualified as an expert in stress analysis of
complex structures, in reliability modeling, and in reliability
and risk analysis. (V. 119 at 17660, 17763, 17666, 17668-671,
17704; V. 237 at 27635). Based on studies he had
performed on this very pipeline, and using the County’s
hypothesis of an original life for the pipeline of 100 years,
he testified that the annual probability of another rupture in
this pipeline between the years_1989 and 1994 was one in a
million. (V. 119 st 17770-772, 17718-720; 17828). He also
testified that the annual probability of a rupture in this
system from 1994 to the year 2078 (the remainder of the
_ alleged 100-year life span for the pipeline) was 4 in 10,000 --
that is, a 97% probability that this pipeline would not
experience another rupture at any time from the date of
trial until 2078, the end of its alleged contract lifetime. Jd.
He compared the risk of a fatality from a rupture to the risk
of a workman fatality during replacement of the pipeline,
and concluded that the risk of a workman fatality during
replacement of the line far exceeded the risk of a fatality
from a future rupture. Jd.; (V. 12 at 17889-890).
38/ One of the County’s expert witnesses verified that this
structure was subject to natural deterioration over time.
(V. 123 at 18400, 18402-403).
2-84
In Grossman Holdings, Lid. v. Hourihan, 414
So.2d 1037 (Fla. 1982), the Court adopted section
346(1)(a) of the Restatement (First) of Contracts, which
might have entitled the County to immediate
replacement of all 3,400 pipe segments in the 13.5 miles
of pipeline if, and only if, the County had proved that
the entire pipeline was worthless or dysfunctional.
(Such proof would not have been possible, of course,
given the County’s continuous use of the line). Corbin
notes that even section 346(1)(a), however, does not
permit replacement cost if replacement will result in
unreasonable economic waste:
For a breach by defective construction . . .
the injured party can get a judgment for
damages measured by the reasonable cost
of reconstruction . . . in accordance with
the contract, if it is possible and does not
involve unreasonable economic waste.
Sometimes the defects in a structure
cannot be physically remedied without
tearing down and rebuilding. In many
such cases, the structure as it exists, even
though it is not exactly in accordance with
the contract requirements, is such that it
will render substantially all of the service
that the structure contracted for would
have rendered; and reconstruction and
completion in accordance with the
contract may be possible only at a cost
that would be imprudent and
unreasonable. The law does not require
damages to be measured by a method
involving such economic waste.
2-85
5 A. Corbin, Corbin on Contracts, § 1089 (1964)
(footnotes omitted).
In order to avoid the economic waste doctrine,
the County was obliged to establish that the pipeline
was no longer capable of rendering substantially all of
the service that the County contracted to receive. The
County in no wise satisfied this condition?”
The most compelling evidence on the issue of
damages came from the County’s own expert witness,
who testified that the pipeline in fact had a service life
beyond the date of trial. (V. 72 at 10711). That
testimony, combined with the County’s admission that it
could have ascertained the remaining service life of this
pipeline but chose not to, confirms that the County did
not establish the element of harm necessary to recover
an immediate (or indeed any other) replacement
award’ (V. 70 at 10404-406).
3 Under subsection (ii) of Restatement section 346(a)(1), the
County might have sought damages in an amount equal to
the difference between the value of the structure contracted
for and the value of the structure received. Restatement
(First) of Contracts § 346(1)(a)(ii)(1932). Since the pipeline
had performed exactly as contracted for, no damage award
under this provision was possible.
a) Even the amount of that award is inaccurate. The
$17,106,715 replacement award is overstated by over
$700,000, based on the known cost for replacement pipe
segments. (V. 113 at 16931-933, 16944-445, 16959,
16960-511; V. 206 at 26625, 26627). This overstatement is
over and above those replacement overcharges detailed in
Madison Management Group, Inc.’s brief, which equally
apply to the replacement award against Hill.
2-86
B. The trial judge improperly
awarded "betterment" damages.
The court awarded $783,388 to the County to
compensate for the cost of upgrading the original
pipeline with an epoxy coating, and $664,444 to redo
the original (and already paid for) pipeline design. (R.
at 4119, 4158-61; V. 206 at 26627). Although these
amounts may appear insignificant in the context of a
$19.8 million award, they are large dollar amounts and
typify the bias which pervades every aspect of this case.
It is axiomatic that, when neither the
specifications nor design are deficient for the original
intended purpose, there can be no damage award
beyond the cost of restoring the structure to its original
design. Grossman v. Sea Air Towers, Ltd., 513 So.2d 686
(Fla. 3d DCA 1987), rev. denied, 520 So.2d 584 (Fla.
1988); see also Temple Beth Sholom v. Thyne
Construction Corp., 399 So.2d 525 (Fla. 2d DCA 1981)
(an owner’s recovery for correction of design defects is
limited to the reasonable cost of repair or replacement
according to the original design) Barile Excavating &
Pipeline Co., Inc. v. Kendall Properties, Inc., 462 So.2d
1129 (Fla. 4th DCA 1984). If an owner decides during
the course of replacement or repair to adopt a more
expensive design, the additional expenses incurred for
such "betterments” are chargeable solely to the owner.
Id. These controlling principles come into play even
more dramatically in relation to an award for
replacement pipe having an epoxy coating -- one that
was not specified in the original pipeline contract.
The court awarded over $780,000 for an epoxy
coating of the new line. Even the ubiquitous Robert
2-87
Edmunds, the County's chief expert witness, had to
acknowledge that Hill did not breach any contractual or
professional duty by failing to require epoxy coating of
the original pipeline:
Q.: In view of what you’ve told us
about the soils and groundwater, do you
have an opinion as to whether or not
[Hill] should have specified a coating, an
epoxy coating or the like, for the pipe in
this pipeline.
A.: ... I think, although not strictly
required, it would have been prudent to
provide the coating... .
Q.: [On cross-examination] And you
would have put one on in 1977, as part of
the specifications ... ?
A.: Not absolutely. I think that it is not a
clear-cut decision as to whether to do it or
not.
(V. 37 at 5559-60, 5923) (emphasis added).
The County-authored final judgment extensively
relies on Mr. Edmunds’ expert opinions on virtually
every aspect of the design and manufacture of the pipe
segments used in this pipeline. (R. at pp. 4008, 4010-18,
4020-22, 4030-34, 4038-39, 4043-45, 4047-52, 4059-60).
It conveniently ignores his testimony on this point,
however, in favor of the testimony of one of the
2-88
County’s other experts, Robert Price. (R. at 4117). Mr.
Edmunds felt that the existence of carbon dioxide in the
groundwater did not require epoxy coating; Mr. Price
was of the opinion that it did. (V. 37 at 5560; V. 71 at
10446). Mr. Edmunds felt it was essential to have both
a low soil Ph and a total high acidity to have an
aggressive environment which would require epoxy
coating; Price disagreed. (V. 41 at 6179; V. 73 at
10758-759). Mr. Edmunds testified that Hill did not fall
below the standard of care in failing to recommend
epoxy coating in 1977; Mr. Price again disagreed.
(V. 41 at 6181-82; V. 43 at 6553-85; V. 71 at
10445-448). Although Edmunds and Price were in
lockstep on virtually every aspect of the design and
manufacture of the component parts of this pipeline,
they could not agree that there was an obligation to
coat this pipeline in the first instance. Patently, the
County failed to establish with any degree of certainty
that the applicable standard of care in 1975 required
such a coating.
Even if Hill should have specified an epoxy
coating, it cannot be held responsible for paying what
would have been the owner’s cost had there been no
breach in the first place. See Sea Air Towers, Ltd., 513
So.2d at 686, in which an architect and engineers were
held to have no liability for the upgrade of a
condominium garage deck because the financial
responsibility for increasing the load capacity would
have fallen on the owners irrespective of any negligence
by the architect and engineers. See also Lochrane
Engineering, Inc., 552 So.2d at 228. Here, as in Sea Air
Towers, Ltd., the cost of upgrading (to epoxy coating)
would have belonged to the County, irrespective of any
2-89
breach. Had Hill specified an epoxy coating in 1977, the
County would have paid for it, not Hill.
The final judgment casts responsibility on Hill to
pay the additional costs of coating its new pipeline --
the alleged difference between the cost of coating the
original pipeline estimated as of 1977 ($1,596,232) and
the current cost of coating a new pipeline ($2,379,620)
(R. at 4159-60; V. 206 at 26627). This award is
nonsensical. The County never spent $1,596,232 to coat
the original pipeline. Since it had the use and benefit
of that money since 1977, Hill is entitled to offset this
saving (rather than being required to foot any increase
in cost). At statutory interest rates, the County benefit
(based on its estimates) was $1,768,275-19. At the
conservative rate of 6%, the County benefitted by
$1,007,839.99. Since both amounts exceed the $783,388
"additional cost" to coat the pipe, the County was
entitled to no award to epoxy coat its new pipeline. 22
Am. Jur. 2d Damages 4% 552 (1988).
For the same reasons, there is no legitimate basis
to award $664,444 against Hill for design of the new
pipeline. (R. at 4161; V. 206 at 26627). This amount
was derived by recalculating the original design and
consulting costs ($365,000) to present dollar value.
(V. 86 at 12897-900). As there was no showing that the
design provided by Hill in 1977 was wholly inadequate,
there is no support for requiring Hill to reimburse the
County every single cent Hill was paid for designing the
pipeline in 1977 ($365,000) at the current value of that
money ($664,444). The County got what it bargained
for, and it is not now entitled to have Hill reimburse its
original design fee ($365,000) at current or any other
rates.
2-90
These two betterment awards, totalling
$1,447,832, are factually and legally unsupportable.
They reflect an overreaching which only an
advocate-drafted final judgment would present4/
Conclusion
It is regrettable that a trial of this length must be
set aside for judicial misconduct. The rules of law
unmistakably require that result, however. Judge
Bryson’s demonstrated bias in favor of the County and
against Hill (both directly and through its counsel),
aggravated by his conduct after being presented with
the motion to disqualify, leave no room to Salvage this
protracted bench trial.
Even if there had been no disqualifying conduct
by the presiding judge, however, the judgment entered
by the trial court cannot be sustained. The
County-crafted final judgment is premised on (i) liability
for torts which were neither pled’ nor proved,
(ii) liability for breaches of one contract to which Hill
was not a party and another which was fully performed
within the realm of services contracted for, and
(iii) damage awards which are wildly speculative and
without legal foundation. Judge Bryson’s entry of the
extraordinary final judgment submitted by the County
departs 80 dramatically from the established legal
principles in Florida that the only plausible explanation
for its entry is the trial court’s predilection to give the
County everything it requested.
4l/ See Waldman v. Waldman, 520 $o.2d 87, 88 n.4, (Fla. 3d
DCA), rev. denied, 531 So.2d 169 (Fla.1988).
2-91
The court is respectfully requested to vacate the ‘
final judgment as being unsupported in law or in fact,
and to remand this case with directions to enter
judgment for Hill. Were the court to conclude
otherwise, at a minimum a new trial must be ordered
before a judge other than Judge Bryson.
Respectfully submitted,
Arthur J. England, Jr., Esq.
Florida Bar No. 022730
Linda Ann Wells, Esq.
Florida Bar No. 231861
Charles M. Auslander, Esq.
Florida Bar No. 349747
Fine Jacobson Schwartz Nash
Block & England
One Centrust Financial Center
100 S.E. Second Street
Miami, Florida 33131
(305) 577-4000
Certificate of Service
I certify that a correct copy of appellant’s initial
brief and appendix initially were mailed on March 25,
1991; copies containing record citations subsequently
mailed on April 8, 1991, to John T. Allen, Jr., Esq.,
4508 Central Avenue, St. Petersburg, Florida 33711; to
Michael J. Keane, Esq., Baynard, Harrell, Mascara &
Ostow, P.A., 696 Sirst Avenue North, Suite 303, St.
Petersburg, Florida 33701; to Stephen Bull, Esq., Bull &
2-92
Haggard, 111 N. Orange Avenue, Suite 1200, Orlando,
Florida 32801; and to Jeffrey S. O’Brien, Esq.,
Masterson, Rogers, Patterson, Masterson, O’Brien &
Lopez, 696 First Avenue North, St. Petersburg, Florida
33701; and to G. Lee Garrett, Jr., Esq., Stephen O.
Kinnard, Esq., Jones, Day, Reavis, & Pogue, 3300 First
Atlanta Tower, Atlanta, Georgia 30383-3101.
[S/
2-93
APPENDIX 3
DISTRICT COURT OF APPEAL,
STATE OF FLORIDA
SECOND DISTRICT
On Appeal from the Sixth
Judicial Circuit, for
Pinellas County, Florida
Case Nos.
90-02027
90-02028
(Consolidated)
MADISON MANAGEMENT GROUP, INC.
and CH2M HILL SOUTHEAST, INC.,
Appellants,
v.
PINELLAS COUNTY, FLORIDA,
Appellee.
MOTION FOR REHEARING, REHEARING
EN BANC, OR CERTIFICATION,
AND FOR CLARIFICATION
Pursuant to Florida Rules of Appellate
Procedure 9.330 and 9.331, appellee Pinellas County,
3-1
Florida, moves for rehearing, rehearing en banc, and
clarification of the decision filed March 13, 1992.
Alternatively, the County moves for certification of the
question identified below to the Florida Supreme Court
as being of exceptional public importance. The panel’s
decision that the County cannot sue its consulting
engineer in tort growing out of its contact conflicts with
scores of Florida decisions allowing clients to sue their
professionals for negligent performance of contractually
agreed upon services. Hence, this decision is not only
of great significance to the County and its residents, as
the panel expressly recognized (Op. 4), it will have an
acute impact on this state’s law governing professional
malpractice claims.
Introduction
1. This case arises from the design and
manufacture of the County’s water pipeline, which first
ruptured in 1979. The non-jury trial of the County’s
claims against the pipeline’s engineer and manufacturer
began in January 1989. In October of that year, both
defendants moved to disqualify the trial judge on
grounds of bias, but the judge denied the motions and
proceeded with the case. After a year-long trial, the
court entered judgment in favor of Pinellas County on
the County’s contract wand tort claims CH2M Hill
Southeast, Inc., successor to the engineer for the
pipeline, Black, Crow & Eidsness, Inc. ("Hill" or the
"Engineer”), and against Madison Management Group,
Inc., successor to the manufacturer of the pipe
("Interpace").
3-2
2. The panel reversed, holding that the trial
judge’s failure to withdraw from the case was error, and
remanded the case for a new trial. Although the panel
left all issues open for re-trial as against Interpace, it
resolved two issues as to the Engineer on their merits.
First, the panel held that the County had no tort claim
against its professional engineer for negligent
performance of the contractually agreed upon services.
Second, the panel held that the County is limited on re-
trial solely to a claim that the Engineer breached its
direct contract with the County by allowing the use of
Class IV wire. It is upon these issues that Pinellas
County seeks rehearing, rehearing en banc, clarification,
or, in the alternative, certification as a question of
exceptional public importance.
Rehearing, Rehearing En Banc, or Certification
As to Tort Claims Against the Engineer
3. The panel held that the County’s
negligence claim against the Engineer was barred as a
matter of law. The panel stated:
To have an actionable tort claim in a
breach of contract case, there must be
appropriate pleadings and proof of
conduct resulting in personal injury or
property damage beyond the breach of the
contract.
(Op. 6-7) (citing J. Allen, Inc. v. Humana of Florida,
Inc., 571 So. 2d 565 (Fla. 2nd DCA 1990)). The panel
concluded that the County "failed to plead an
independent tort separate from its breach of contract
3-3
claim against Hill" because the complaint "characterized
Hill’s ‘negligence’ in the performance of the contract as
in fact constituting the breach of contract." (Id. 7).
4. In relying upon that general rule, the
panel completely overlooked or misapprehended the
County’s allegation that Hill is a professional (Amended
Complaint 4 64) and the settled case law which
establishes that special rules apply to professional
negligence claims growing out of the parties’ contract
for professional services. The panel’s holding that
judgment must be entered as a matter of law on the
County’s claim against the Engineer for its negligence in
performing its professional duties under its contract
with the County directly conflicts with controlling
Florida precedent and with this Court’s own decisions
that privity of contract is an essential element of -- not a
bar to -- a professional negligence claim in Florida.
Thus, in Angel, Cohen & Rogevin v. Oberon Investment,
N.V., 512 So. 2d 192, 194 (Fla. 1987), cited and followed
by this Court in Nickolauson v. Rhyne, 529 So. 2d 365,
366 (Fla. 2d DCA 1988), the Florida Supreme Court
held that attorneys’ liability for "negligence in the
performance of their professional duties" is limited to
“clients with whom they share privity of contract.”
(Emphasis supplied). As recently as its decision in
Baskerville-Donovan Engineers, Inc. v. Pensacola
Executive House Condominium Association, Inc., 581 So.
2d 1301, 1303 (Fla. 1991), the Supreme Court held that
a professional’s contractual privity with its client created
a duty in tort toward that client:
Clearly, privity between the parties may
create a duty of care providing the basis
34
for recovery in negligence. (Emphasis
supplied).
The panel’s holding that the County cannot sue
its consulting engineer for the negligent performance of
the contractually agreed upon professional services
turns these decisions on their head and makes the very
existence of the contract a legal bar to a professional
implicitly warrants as part of his contract that he will
use due care in performing the agreed upon services,
Bayshore Development Co. v. Bonfoey, 75 Fla. 455, 78
So. 507, 509 (1918), a client would -- under the panel’s
opinion -- always be foreclosed from suing his
professional negligence. But that is directly contrary to
the wealth of Florida decisions which have allowed tort
claims by clients where their professional failed to use
due care in performing the contracted for services.
5. In light of Florida’s requirement of privity
of contract as a pre-condition to a professional
negligence claim, it is clear why the County’s pleadings
were framed as they were. Indeed, the County’s
allegations closely paralleled those in Bayshore
Development Co., 78 So. at 508-10, where the plaintiff
alleged that it had contracted with the architect to
prepare building plans and then alleged the “negligent
failure to use skill and care on defendants’ part in the
making and execution of the plans... ." /d. at 508.
The Supreme Court expressly upheld that cause of
action as one “in tort growing out of a contract.” Id.
(Emphasis supplied).
The County’s professional negligence claim is
equally valid as one "in tort growing out of a contract,"
and the panel’s extraordinary and unprecedented
3-5
holding that the client must instead allege negligent
conduct by his professional that is "separate" and
“independent” of the conduct constituting the breach of
the professional’s contract directly conflicts with the
cited decisions. This creates an issue of exceptional
importance to the public which contracts for
professional services. The Court should grant rehearing
en banc on this point if rehearing is not otherwise
granted or, in the alternative, certify the following
question to the Florida Supreme Court:
Whether a client is barred from suing a
professional for negligence which also
constitutes a breach of the parties’
contract for those professional services.
Rehearing, Rehearing En Banc, or Certification
As to Contract Claims Against the Engineer
6. The Engineer prepared the contract
between the County and Interpace by which Interpace
agreed to manufacture the pipe to the Engineer’s
specifications. That contract expressly provided that
Hill’s predecessor, Black, Crow & Eidsness, Inc. - by
name -- would have certain specified responsibilities in
connection with Interpace’s manufacture of the pipe.
The evidence at trial established that the Engineer
subsequently undertook to perform duties specified in
the Interpace contract but did not perform them
properly.
7. The panel, after reversing on the
disqualification issue and remanding for a new trial,
concluded that no liability could be imposed on the
3-6
Engineer with respect to obligations under the
Interpace contract because it was not a party or
signatory to that contract. As the panel put it:
It remains the rule in Florida that
ordinarily a contract cannot bind one who
is not a party thereto or has not in some
fashion agreed to accept its terms.
(Op. 8) (emphasis supplied).
Having articulated the rule to be applied to the
facts, the panel overlooked or misapprehended the
ample evidence in this record from which a trier of fact
could find that the Engineer had "in some fashion
agreed to accept” the terms of the Interpace contract,
thus making this an issue of fact to be resolved on re-
trial. For example, there was evidence that the
Engineer prepared the County’s contract with Interpace
and that this contract expressly imposed obligations on
Hill, “acting for" the County, regarding approval of
materials, certification of invoices for payment,
inspection of shop drawings, and various other aspects
of the pipe manufacture. Moreover, there is
considerable evidence in this record regarding Hills’
subsequent undertaking of responsibilities specified for
Hill in the County’s contract with Interpace, and this
further demonstrated a manifestation of the Engineer’s
agreement to accept the terms of the Interpace contract.
In light of this evidence, the rule enunciated in
the panel’s opinion cannot be applied in this case as a
matter of law. Rather, there must a factual
determination whether these and other acts established
in this record demonstrate that the Engineer had "in
3-7
some fashion agreed" to perform the duties it had
specified for Hill in the Interpace contract. The panel
focuses on certain factors which could lead the trier of
fact to find there was no such agreement, but the panel
completely overlooks other, critical facts - including the
Engineer’s drafting of the Interpace contract, a fact
nowhere mentioned in the panel’s opinion -- which could
certainly lead a trier of fact to the opposite conclusion.
Hence, rehearing should be granted and the panel’s
opinion clarified to allow the County to present
evidence on re-trial in support of its claim that the
Engineer agreed to accept, and then undertook to
perform, the responsibilities it expressly imposed upon
itself, by name, as the County’s representative under the
Interpace contract.
8. Even apart from this, the Interpace
contract cannot be held as a matter of law to be
irrelevant to a determination of the Engineer’s
contractual duties to the County. The panel overlooked
the settled principle that the construction of a contract
as a matter of law -- as the panel’s opinion undertakes
to do -- is only appropriate where the contract’s
language is unambiguous. See, e.g., Neumann v.
Brigman, 475 So. 2d 1247, 1249 (Fla. 2d DCA 1985);
Courtney v. R.L. Schmeckpeper, Inc., 442 So. 2d 294, 296
(Fla. 2d DCA 1983).
The panel does not, and could not conclude that
the Engineer’s contract with the County was
unambiguous. For example, the term "construction," a
term used throughout the Engineer’s contract with the
County, is nowhere defined in that contract and it is
undeniably subject to two completely different
interpretations by the parties. Thus, although the
3-8
Engineer contended at trial that "construction" as sued
in its contract with the County referred only to
installation of the pipe, when it came to calculating the
amount of money it should receive under Item F of that
same contract for progress payments based on
“construction cost,” it is undisputed that the Engineer
included the full cost of the manufacture of the pipe!
(R. 9051-55). This alone creates an ambiguity on the
face of the Engineer’s contract with the County.
In light of that ambiguity, it was entirely
appropriate for the trier of fact to look to extrinsic
evidence -- including the Interpace contract, in which
the Engineer had expressly defined the term
"construction" as having precisely the meaning the
County had understood it to have in the Engineer’s
contract with the County -- to construe the contract.
Friedman v. Virginia Metal Products Corp., 56 So. 2d 515,
516 (Fla. 1952) (given two reasonable constructions,
contract could not be interpreted without reference to
the circumstances surrounding it); Bunnell Medical
Clinic, P.A. v. Barrera, 419 So. 2d 681, 683 (Fla. 3d DCA
1982) (latent ambiguities in contract rendered parol
evidence admissible); see Dickerson Construction Co. v.
Process Engineering Co., 341 So. 2d 646, 650-51 (Miss.
1977) (contract between owner and contractor -- drafted
by engineer -- relevant to resolving ambiguity in
engineer’s contract with owner). Hence, the
construction of the Engineer’s contractual duties
constitutes an issue of fact to be resolved in the re-trial
of this case. The panel, however, overlooking this
limitation on the scope of appellate review, undertook
to construe the Engineer’s contract with the County as a
matter of law.
3-9
Rehearing or Clarification as to Re-Trial of
County’s Contract Claims Against the Engineer
9. The panel concluded that the Engineer
was entitled to judgment as a matter of law on "all" the
County’s contract claims but one -- whether the
Engineer breached its contract with the County by
allowing the pipe manufacturer to sue Ciass IV wire.
Given the length of the trial proceedings, the enormous
size of the record on appeal (262 volumes), and the
complexity of these highly technical issues (all of which
are acknowledged by the panel at pages 3-4 of its
decision), it is not surprising that the panel overlooked
or failed to apprehend the force and effect of the
evidence establishing the Engineer’s breaches of other
duties expressly imposed under its direct contract with
the County. Indeed, many of the trial court’s findings of
those additional breaches were not even appealed by the
Engineer, and hence the voluminous evidence
establishing those breaches was not focused on in the
briefs or oral argument to the panel.
The County must be allowed on re-trial to
pursue its claims of those other contractual breaches for
precisely the same reason that the County is entitled to
assert its contract claim against the Engineer for
allowing the use of Class IV wire. The panel correctly
recognized the Engineer’s contractual obligation to
review Interpace’s submittal sheets with respect to the
wire. But the panel overlooked or misapprehended the
substantial competent evidence in the record that the
Engineer’s review of those submittals -- a review of the
Engineer was admittedly required to and did make
under Item A(6) of its contract before the County
executed the construction contract with Interpace
3-10
(Compare Interpace contract dated February 25, 1977
with submittal sheets approved by Hiil on February 7,
1977 (R. 19043, 9504-06)) -- failed to discover
deficiencies apart from the Class IV wire deficiency.
Among many other things, there was considerable
evidence that the Engineer failed to properly check the
design formulas set forth in Interpace’s submittal sheets
(from which it would have discovered that the pipe
would not operate at the pressure specified by the
Engineer). (R. 7460-61).
Furthermore, the record evidence establishes
breaches by the Engineer of other obligations imposed
under its direct contract with the County. For example,
under Item A(1), the Engineer expressly agreed as a
part of its "design" services to "[p]rovide consultation
and advice as to the necessity of providing other
services such as .. . laboratory testing and inspection of
samples or materials . . ." and, in Item A(3), the
Engineer agreed to (and it did) prepare the contract for
the construction of the pipe. There is an issue of act
whether, in order to properly perform those
responsibilities, the Engineer should have included a
provision in the Interpace contract requiring suitable
testing of materials as suggested by the applicable
national standards. An issue of fact is also presented
regarding the Engineer’s improper drafting of the
Interpace contract to assign such duties to itself as the
County’s representative if, unbeknownst to the County,
Hill did not intend to accept responsibility for those
duties. Hill cannot have it both ways.
In addition, there was overwhelming evidence in
this record that the Engineer improperly designed the
pipeline in the first instance. In particular, it failed to
3-11
specify in its design a proper protective coating for the
pipeline, in violation of Items A(1) and A(2).
(R. 10445-46. 10450). It also failed to properly design
placement of relief valves, in violation of Item A(2).
(R. 5180-83; 6148-49).
In short, the panel’s ruling that only one alleged
breach -- Class IV wire -- is left in the County’s contract
claim against the Engineer overlooks numerous other
breaches of the obligations the Engineer expressly
assumed in its contract. The panel’s opinion should be
clarified to make plain that the County may on re-trial
pursue all of its claims of breaches of the Engineer’s
direct contract with the County.
Required Statement for Rehearing en Banc
Pursuant to the requirements of the Florida
Rules of Appellate Procedure 9.331(c)(2), we express a
belief, based on a reasoned and studied professional
judgment, that the panel decision is one of exceptional
importance and, further, that the panel’s decision is
contrary to the following decisions of this Court and
that a consideration by the full court is necessary t
maintain uniformity of decisions in this Court.
Nickolauson v. Rhyne, 529 So. 2d 365 (Fla. 2d DCA
1988); Newman v. Brigman, 475 So. 2d 1247 (Fla. 2d
DCA 1985); Courtney v. R.L. Schmeckpeper, Inc., 442
So. 2d 294. (Fla. 2d DCA 1983).
3-12
John T. Allen, Jr.
John T. Allen, Jr., P.A.
4508 Central Avenue
St. Petersburg, FL 33711
(813) 321-3273
Michael J. Keane
Baynard, Harrell, Mascara,
Ostow & Ulrich, P.A.
100 2nd Avenue South
Suite 1202
St. Petersburg, FL 33732
(813) 894-5335
Alan C. Sundberg
Sylvia H. Walbolt
Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A.
500 First Florida Bank Bldg.
P. O. Drawer 190
Tallahassee, Florida 32302
(904) 224-1585
Attorneys for Appellee
Pinellas County
By: [Ss/
Alan C. Sundberg
Florida Bar No. 079381
3-13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the
foregoing has been furnished by U.S. Mail this 27th day
of March, 1992 to:
Jeffrey S. O’Brien, Esq.
Masterson, Rogers, Patterson,
Masterson, O’Brien & Lopez
699 1st Avenue North
P. O. Box 31517
St. Petersburg, FL 33732-1517
Stephen M. Bull, Esq.
Guy S. Haggard, Esq.
Bull and Haggard
111 N. Orange Avenue
Suite 1200
Orlando, Florida 32801
G. Lee Garrett, Jr., Esq.
Stephen O. Kinnard, Esq.
Jones, Day, Reavis & Pogue
3300 First Atlanta Tower
Atlanta, Georgia 30382-3101
3-14
Arthur J. England, Jr., Esq.
Linda Ann Wells, Esq.
Charles M. Auslander, Esq.
Fine, Jacobson, Schwartz, Nash,
Block & England
One Centrust Financial Center
100 S.E. Second Street
Miami, FL 33131
LS/
Attorney
3-15
——
APPENDIX 4
IN THE SECOND DISTRICT COURT OF APPEAL,
LAKELAND, FLORIDA
MAY 19, 1992
Case No. 90-02027
90-02028
BY ORDER OF THE COURT:
Counsel for appellee having filed a motion for
rehearing, rehearing en banc or certification and for
clarification in the above-styled case, upon
consideration, it is
ORDERED that said motion is hereby denied.
4-1
I HEREBY CERTIFY THAT THE FOREGOING IS
A TRUE COPY OF THE ORIGINAL COURT
ORDER.
(Signed)
WILLIAM A. HADDAD, Clerk
c: Stephen M. Bull, Esq.
Stephen O. Kinnard, Esq.
Arthur J. England, Jr., Esq.
Jeffrey S. O’Brien, Esq.
John T. Allen, Jr., Esq.
Michael J. Keane, Esq.
Alan C. Sundberg, Esq.
Sarah M. Chaves, Esq.
4-2
APPENDIX 5
SUPREME COURT OF FLORIDA
CASE NO. 80,056
MONDAY, OCTOBER 1, 1992
DISTRICT COURT OF APPEAL
2ND DISTRICT NO. 90-02027
90-02028, 90-03562, 90-03563
PINELLAS COUNTY, FLORIDA,
Petitioner,
Vv.
CH2M HILL SOUTHEAST, INC.,
ET AL,
Respondents.
/
This cause having heretofore been submitted to
the Court on jurisdictional briefs and portions of the
record deemed necessary to reflect jurisdiction under
Article V, Section 3(b), Florida Constitution (1980), and
the Court having determined that it should decline to
accept jurisdiction, it is ordered that the Petition for
Review is denied.
No Motion for Rehearing will be entertained by
the Court. See Fla. R. App. P. 9.330(d).
OVERTON, SHAW, GRIMES KOGAN AND HARDING, JJ.,
concur
A True Copy
ATTEST:
(Sealed)
Sid J. White
Clerk of the Court
cc: Hon. William A. Haddad, Clerk
Hon. Karleen F. DeBlaker, Clerk
Hon. Fred. L. Bryson, Judge
Alan C. Sundberg, Esquire
Sylvia H. Walbolt, Esquire
John T. Allen, Jr., Esquire
Michael J. Keane, Esquire
Jeffrey S. O’Brien, Esquire
Stephen M. Bull, Esquire
G. Lee Garrett, Jr., Esquire
Arthur J. England, Jr., Esquire
Linda Ann Wells, Esquire
William J. Roberts, Esquire
Joe Horn Mount, Esquire
Michael A. Skelton, Esquire
Joel S. Perwin, Esquire
Charles Auslander, Esquire
Maite Azcoitia, Esquire
John Copelan, Jr., Esquire
Herbert W.A. Thiele, Esquire
Julia E. Lovelace, Esquire
Joseph M. Mathews, Esquire
5-2
APPENDIX 6
IN THE CIRCUIT COURT FOR
PINELLAS COUNTY, FLORIDA
CIRCUIT CIVIL NO. 83-13313-07
PINELLAS COUNTY, etc.,
Plaintiff,
V.
INTERPACE, etc., et al.,
Defendants.
PROCEEDINGS: Request for Clarification.
BEFORE: Hon. Howard Rives,
Judge of the Circuit Court.
DATE: March 3, 1993.
PLACE: Judicial Building,
St. Petersburg, Florida.
REPORTED BY: Donald Kanabay, C.M.,
Official Court Reporter.
KANABAY & KANABAY
OFFICIAL COURT REPORTERS
ST. PETERSBURG, CLEARWATER - 821-3320
TAMPA - 224-9500
6-1
APPEARANCES:
MR. JOHN T. ALLEN, JR.
4508 Central Avenue
St. Petersburg, Florida
and
MR. MICHAEL J. KEANE
and MS. SARA CHAVES
Baynard, Harrell, Mascara,
Ostow and Ulrich
100 Second Avenue South
St. Petersburg, Florida
Attorneys for Plaintiff.
MR. BENJAMIN H. HILL Il
Hill, Ward and Henderson
P. O. Box 2231
Tampa, Florida 33601
Attorneys for CH2M Hill.
6-2
THE COURT: Good morning. I want to
apologize to everyone here for not keeping the
appointment the other day, but I had a cold and I still
have it, unfortunately. Mr. Allen, have you and Mr.
Hill discussed the order that you want to proceed on
this morning?
MR. ALLEN: No, we haven’t, your Honor. As
far as which one would be taken up first.
MR. HILL: The one thing we did decide, Judge,
was that there are apparently three cases set for
consideration before your Honor today: what we call
the 60-inch case -- the Pinellas County case -- the West
Coast case, and then the CDM case -- and I think we
agreed, because of time constraints, to go ahead and
Start with the 60-inch case.
MR. ALLEN: That’s correct. He needs to leave
by twelve o’clock.
MR. HILL: Right.
THE COURT: All right. We’ll accommodate
your schedule, Mr. Hill.
MR. HILL: And we’re prepared -- I mean, other
people will stay and take care of CH2M Hill -
THE COURT: We have today set side [sic] for
you.
MR. HILL: Yes, sir.
6-3
MR. ALLEN: Judge, also, we have resolved
whatever issues that were pending in the CDM case
with Mr. Smith, so we don’t have to bother your Honor
with that particular matter today. There were discovery
matters and things of that kind, which --
THE COURT: Is that the one about whether or
not Mr. Price’s deposition and the costs of that --
MR. ALLEN: No, sir, that’s still going to be, I
guess, vigorously argued here. I think that one’s still
alive. But that comes from the 84-inch case, Judge,
rather than the Cross Bar case.
THE COURT: Well, let’s see if we can resolve
the 60-inch case first. And just let me say, gentlemen,
that I have a copy of the Mandate from the Second
District in front of me, and I also have a copy of the
Opinion, and I’m just as eager as you are to determine
what the issues are, and the procedures. My clerks
were also kind enough to make a copy of the ALR
annotation -- I think I gave you folks the wrong cite -- it
was 9 ALR 4 1041 is the article that I had reference to
about the annotation relating to jury trials. I think that
page 8 or section 8 of that particular article pertains to
the various subject matter that we will have at had on
this case at some point.
MR. HILL: Your Honor, if I might, I don’t
know what the logical way is to start, with respect to the
60-inch case, but you said you have the mandate in
front of you?
THE COURT: Yes, sir.
MR. HILL: One of the things that the Mandate,
read with the Opinion, says, is that the Court will enter
a Judgment in favor of CH2M Hill on all issues save
one. With that in mind, I prepared and have given to
Mr. Allen and Mr. Keane a copy of a proposed final
partial judgment which would be consistent with the
Mandate.
MR. KEANE: Are you reading from the
Mandate, you say?
THE COURT: No, it’s in the Opinion.
MR. HILL: It’s in the Opinion. Page 88 of the
Opinion says, we hold further that Hill is entitled to
judgment as a matter of law on all issues save one, and
the new trial as to Hill shall be limited to the oue issue
dealt with below.
So what we’ve done is just track that
language in our proposed Final Judgment, your Honor,
and submit that to you for your consideration.
THE COURT: Well, looking at page 6 of the
Opinion, if you have it -- the Court’s own Opinion,
helpful to have that in front of you. That’s the CH2M
Hill contract which is the subject of this case.
MR. HILL: If your Honor wants me to respond
now, I can, because I think it’s rather simple as to all of
this.
6-5
THE COURT: I just wondered how — I don’t
want to break into Mr. Keane’s planned arguments,
but -
MR. HILL: Well, if he’d like to finish his
argument --
THE COURT: Let him conclude, and then we’ll
see.
MR. KEANE: This may be a little bit -- the
issue is squarely raised by their proposed final partial
judgment. What they would like you to sign, your
Honor, they want you to say that the only thing we get
to plead and proceed on at trial is the one breach of
the contract by CH2M Hill, namely, allowing the pipe
manufacturer to use class 4 wire. And if you don’t read
the Opinion carefully enough, it would seem to say just
that. But you have to look at the entire Opinion and
the law of the State of Florida to know exactly where
we stand, and this is where I believe we stand.
If you look at the brief that was filed by
CH2M Hill, they never appealed several of the issues
that we raised as breaches of the contract. They just
simply never gave the Second District Court of Appeal
the opportunity to even address the issues. For
example, if you look at page 40 of the Complaint, we
complained that CH2M Hill failed to specify or to have
performed sufficient inspection and testing of materials
used in the manufacture of the pipe to ensure the pipe
would be manufactured and delivered as required by
the specifications. Sub (E) on that page, we
complained that CH2M Hill failed to certify completion
of the project, which they were required by their
6-6
contract to do. Turning to page 42, (H) complained
that they failed to specify acceptance inspection
procedures adequate to identify defective pipe, and it
goes on in some detail. They failed to id: »tify incorrect
pipe loading and unloading techniques; faiied to require
Interpace to provide samples and specimens of pipe.
Well, if you look at the CH2M Hill contract, that’s
exactly the category and class of activities they
contracted with Pinellas County to do. Judge Bryson, in
his Final Judgment, found violations of each of these
things, and CH2M Hill never appealed those issues.
And of course, if you go back to what did
the Second District do, the first thing the Second
District did was they wiped out the judgment, because
they said the Judge was biased or should have stepped
down. Once having done that, we’re back as though
that case was never tried, and consequently the only
issues that the District court could dispose of were not
issues that were fact dependent, where there was an
issue of fact to be tried, as to whether there was or was
not a breach of the CH2M Hill contract; the only thing
they could do was look at the documents and determine
whether, as a matter of law, certain duties existed or
didn’t. And in fact, they found one of those issues for
CH2M Hill, when they found that they c
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