4D09-752-Trikon Sunrise Associates, LLC v. Brice Building Company, Inc.

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D09-752

Case Date: 07/14/2010

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2010

TRIKON SUNRISE ASSOCIATES, LLC, Appellant, v. BRICE BUILDING COMPANY, INC. a/k/a BRICE CONSTRUCTION COMPANY, SALTZ MICHELSON ARCHITECTS, INC., SALTZ MICHELSON PARTNERSHIP, LLC, MARK L. SALTZ, SAAD ELIA ELHAGE CONSULTING ENGINEERS, INC. and SAAD ELIA EL-HAGE, Appellees. No. 4D09-752 [July 14, 2010] COX, JACK S., Associate Judge. Trikon Sunrise Associates, LLC, appeals an Order of Final Summary Judgment in favor of the defendant, Mark L. Saltz. We reverse. ---FACTS--Mark Saltz, individually, was sued for professional malpractice for architectural services performed while working for the architectural firm of Saltz Michelson Architects, Inc. Th e firm was also named as a separate defendant. The Complaint alleges that L.A. Fitness entered into a written contract with Saltz Michelson Architects, Inc., for professional services during the construction of a fitness center to be built b y a general contractor, known as Brice, on property owned by Trikon that was leased to L.A. Fitness. On July 14, 2004, the architectural firm entered into its consulting agreement with L.A. Fitness, the tenant. Th e consulting agreement provided that the firm employs fully-qualified professional architects, and was unambiguous in describing the services to be performed by the architectural corporation through its individual qualified professional architects. Brice, the contractor, was not a party to this agreement, nor

was the owner of the property or Mark Saltz, though Saltz signed the contract on behalf of the firm. Almost a year later, on May 20, 2005, the tenant, L.A. Fitness, and the general contractor, Brice, entered into an AIA Document A107-119 Form Contract. Th e owner of the property was not a party to the contract, neither was the architectural firm or Saltz. It is alleged that the contract specifically provided that the contractor would b e solely responsible for and have control over the construction means, methods, techniques, sequences and procedures, and for safety precautions and programs in connection with the work o n th e project and that the architect would not be responsible for the contractor's failure to perform in accordance with the contract documents. The contractor commenced construction o n th e fitness center on October 24, 2005, utilizing "tilt" wall or "tilt up" construction panels. Hurricane Wilma struck Florida while the process of constructing the walls was incomplete. Th e walls had been temporarily braced, but collapsed nonetheless. The collapse of the walls caused the project to be delayed. The owner of the property, Trikon, filed suit against the general contractor, architect, a n d engineer. In the Complaint, both Saltz Michelson Architects, Inc., and Mark Saltz were sued in separate counts for professional malpractice, asserting that they should have known that the temporary bracing was inadequate for hurricane force winds and that they breached a duty of care for failing to verify the details of the erection of the concrete panels, including the temporary bracing. Further, it was alleged that they failed to initiate a review and approval process of the erection details, including the temporary bracing, before allowing fabrication and erection of the panels to proceed, and failed to determine prior to erection whether the temporary bracing was sufficient to withstand wind and/or other forces likely to occur prior to completion. The architectural firm and Mark Saltz filed a joint Motion for Summary Judgment, arguing that the firm and Saltz "never had the duty alleged to have been breached, by contract or otherwise." The motion also argued that negligence may consist of either doing something that a reasonably careful architect would not do under like circumstances or failing to do something that a reasonably careful architect would do under like circumstances a n d that no contracting party h a s any obligation greater than as promised in its contract, citing Lochrane Engineering, Inc. v. Willingham Realgrowth Investment Fund, Ltd., 552 So. 2d 228 (Fla. 5th DCA 1989).
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In their Motion for Summary Judgment, various portions of the owner's Complaint were referenced; among those allegations were the following: 34. ARCHITECT agreed to provide its professional services with regard to design, planning and supervision of the construction of the FITNESS CENTER. 35. ARCHITECT knew or should have known that high winds a n d / o r adverse weather conditions specifically associated with Hurricane Wilma would exist at the PROJECT on or about October 24, 2005. 36. ARCHITECT knew or should have known that the temporary bracing in place for the concrete panels was significantly inadequate for hurricane force winds. 37. ARCHITECT knew or should have known that if the concreted panels erected b y BRICE collapsed then, thereafter, the resulting demolition and re-construction would significantly delay and impair TRIKON's development activities. 38. ARCHITECT had a duty to exercise a degree of care and skill in the design, planning a n d supervision of the construction of the FITNESS CENTER as would be exercised by other reasonably skilled architects practicing in the South Florida area under the same or similar circumstances. 39. ARCHITECT breached its duty for reasons including but not limited to: (1) failing to exercise that degree of care and skill as would b e exercised by other reasonably skilled architects practicing in the South Florida area under the same or similar circumstances; (2) failing to verify or ascertain that the details of the erection of the concrete panels, including the temporary bracing, were prepared and sealed by a registered engineer; (3) failing to initiate a review and approval process of erection details, including the temporary bracing, before allowing fabrication and erection of the concrete panels to proceed; and (4) failing to determine, prior to erection of the concrete panels, whether the temporary bracing system which was utilized was sufficient to withstand or otherwise protect against wind and other forces that were likely to occur until connections to the permanent structural system were completed. The trial court denied the architectural firm's Motion for Summary Judgment, but granted Summary Judgment in favor of Saltz.
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---ANALYSIS--A professional duty may arise in favor of a third party as a result of a matter of law or as a result of a contract between parties, or by virtue of a gratuitous undertaking. In this case, the architectural corporation and the individual architect allegedly had duties imposed upon them and those allegations are supported by Florida Statute and also because of the contract scope of work. Chapter 481, Florida Statutes (2005), "Architecture a n d Interior Design," describes the services and responsibilities of an "Architect," which specifically include services of "planning, providing preliminary study designs, drawings and specifications, job-site inspection, and administration of construction contracts."

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