# Appendix — Pinellas County v. CH2M Hill Southeast, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1005%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 824 ## Text — 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 | ‘ “ om tener Se a Race at 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 x ay. ; > 403.121. Fla. Stat. (1020) Or — ~— +2 > — Sf) - oe . < x L MP LD » +. 7, LYaRY) § 403.161. Fla Stat. (1989 R ’ . 5 4 VO/7, Fla. Star 1QOR a 4 | ¥ 4/1.008, Fla. Stat. (1989 R A ' " ys 4 U25. Fla Sta IY ‘ 4 se | 4 4/1.031, Fla. Stat Yay e 4 >» ~ © U3 I ia Stat LYRY x 4 | 2 . 4 f ~ ‘ , | ; § 471.035, Fla. Stat. (1989) 1A i 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 insignif [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1005%3A4. Public record. Not legal advice.