5D03-3729 Grading and Bush v. FL Dept. of Transportation

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2005 » 5D03-3729 Grading and Bush v. FL Dept. of Transportation

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3729

Case Date: 01/24/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005 GRADING AND BUSH HOG SERVICES, INC., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee. _______________________________/ Opinion filed January 28, 2005 Appeal from the Circuit Court for Marion County, Brian D. Lambert, Judge. Brant Hargrove, Tallahassee, for Appellant. Pamela S. Leslie, General Counsel and Marianne A. Trussell, Deputy General Counsel of Department of Transportation, Tallahassee, for Appellee. PALMER, J. Grading and Bush Hog Services, Inc. ("Bush Hog"), appeals the trial court's final order granting Florida Department of Transportation's ("FDOT") motion to dismiss Bush Hog's thirdamended complaint. Concluding that Bush Hog's third-amended complaint does state a cognizable cause of action, we reverse. Review of the complaint filed by Bush Hog indicates that Bush Hog and FDOT entered into a contract for, among other things, the removal and replacement of four-inch and six-inch concrete sidewalks in and around Marion County, Florida. Problems arose when, after commencing the project, Bush Hog discovered that some of the concrete which was to be removed was 12 to 18 inches thick in some areas, not 4 to 6 inches thick as described in the Case No. 5D03-3729

parties' contract. As a result of this discovery, Bush Hog contended that removal of this additional concrete required extra work not covered under the parties' contract. Accordingly, Bush Hog requested that FDOT issue a supplemental agreement to cover the extra expenses incurred for removing the additional concrete. 1 In the request, Bush Hog offered FDOT the option of reserving its right to argue that no additional payment was due for said work. FDOT refused the request. Bush Hog's third-amended complaint alleged breach of contract based on FDOT's failure to pay for work performed in accordance with the terms of the parties' contract and breach of contract for wrongful termination of said contract. FDOT filed a motion to dismiss the thirdamended complaint, arguing that Bush Hog had failed to state a cause of action because it had failed to attach a written notice of final acceptance of the work, as required by section 337.19(2) of the Florida Statutes. Without citing any case law to support its position, FDOT argued that section 337.19(2) required a contractor to obtain a notice of final acceptance as a condition precedent to filing a lawsuit against FDOT. The trial court entered an order granting FDOT's motion to dismiss with prejudice, basing its decision on the fact that Bush Hog's complaint failed to comport with the requirements of section 337.19(2). Section 337.19 of the Florida Statutes governs lawsuits filed against FDOT. Subsection two of the statute provides, in relevant part, as follows: 337.19. Suits by and against department; limitation of actions; forum ***

Section 337.11(8) of the Florida Statutes (2001) authorizes FDOT to issue a supplemental agreement when a contractor's work exceeds the initial contract by 5% or when a contractor provides unforeseen work. Noteworthy, the issuance of such as an agreement is necessary to insure the contractor's ability to seek payment for work performed but not covered by the initial contract. See

Download 5D03-3729 Grading and Bush v. FL Dept. of Transportation.pdf