03-3362 LODGE V. MONROE COUNTY

State: Florida

Court: Florida Third District Court

Docket No: 03-3362 LODGE V. MONROE COUNTY

Case Date: 11/24/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2004 ** ** ** ** ** ** ** LOWER TRIBUNAL NO. 00-617 CASE NOS. 3D03-3362, 3D04-250, 3D04-399 & 3D04-423

LODGE CONSTRUCTION, INC. and AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA, Appellants, vs. MONROE COUNTY, FLORIDA and BENDER & ASSOCIATES, INC., Appellees.

Opinion filed November 24, 2004. An Appeal from the Circuit Court for Monroe County, Richard G. Payne, Judge. Adorno & Yoss and Paul M. Woodson, for appellants. Ferencik Libanoff Brandt Bustamente & Williams and Lori R. Shapiro, for appellee Monroe County, Florida. Daniels, Kashten, Downs, Robertson & Magathan and Madelyn Simon Lozano and Michael F. Kashtan, for appellee Bender & Associates, Inc. Before GODERICH, SHEVIN, and RAMIREZ, JJ. PER CURIAM.

The defendants, Lodge Construction, Inc. [Lodge] and its surety, American Casualty Company of Reading Pennsylvania,

appeal from a partial final summary judgment entered in favor of Monroe County on the issue of liability finding that Lodge

breached the construction contract.

We reverse finding that the

deposition testimony of Michael Dunn, Lodge's principal, raised genuine issues of material fact that precluded the entry of summary judgment. Fla. R. Civ. P. 1.510(c). Further, because

the directed verdict on the issue of professional negligence granted in favor of the architect, Bender & Associates, Inc. [Bender], was predicated on the summary judgment entered against Lodge, we also reverse the final judgment entered in favor of Bender. Although not necessary for the disposition of this case, we choose to address an evidentiary issue raised by Lodge that will recur on remand. discretion by Lodge contends that the trial court abused its evidence of Bender's alleged window

excluding

design defects.

We find that the trial court acted within its

discretion where these defects affected the project after Lodge had already stopped construction on it. Hendry v. Zalaya, 841

So. 2d 572, 575 (Fla. 3d DCA 2003)("A trial court has broad discretion rulings concerning will not the be admissibility disturbed of evidence an and its of

absent

abuse

discretion.")(citations omitted).

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Because a new trial on liability and damages is warranted, we do not address the remaining issues raised on direct appeal or on Monroe County's cross-appeal. Reversed and remanded for a new trial.

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