James v. Pneuma Construction Corp. , 2016 Fla. App. LEXIS 6345 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed April 27, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2136
Lower Tribunal No. 14-7911
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Donald James and Maureen James,
Appellants,
vs.
Pneuma Construction Corp., a Florida Corporation and Larry D.
Jones, individually,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.
Arnaldo Velez; Benson Chiedozie Okafor, for appellants.
Henriques Law & Mediation Group, and G.O.L. Henriques, for appellees.
Before WELLS, EMAS and LOGUE, JJ.
WELLS, Judge.
Donald James and Maureen James, the plaintiffs/counter-defendants below,
appeal from an order granting summary final judgment in favor of the
defendants/counter-plaintiffs, Larry D. Jones and Pneuma Construction
Corporation, on their counterclaim for breach of contract and to foreclose a
construction lien. Finding that disputed issues of material fact preclude entry of
summary judgment in this case, we reverse. See Grant Builders Group, Inc. v.
South Bay Ace Hardware Lumber & Paint Co., 58 So. 3d 348, 349 (Fla. 1st DCA
2011) (“An order granting final summary judgment is reviewed de novo to
determine whether issues of material fact exist and whether the moving party is
entitled to judgment as a matter of law.”).
Donald and Maureen James own a home located in Miami-Dade County,
which they sought to remodel. On June 14, 2013, Maureen James entered into an
agreement with Pneuma Construction Corporation (“Pneuma”) to perform
construction work at the home. The parties’ two-page agreement states only that
Pneuma will install a tie beam, a new wall, and a slab on grade; that it will perform
unspecified demolition; and, that it will provide masonry blocks and a dumpster at
a total cost of $35,000.
The parties agree that some of the work called for in their contract was
performed, but after the Jameses had paid a total of $28,000 on the project they
stopped paying, claiming that Pneuma had failed to perform under the contract as
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agreed. When Pneuma refused to continue to perform without further payment, the
Jameses hired a new contractor to finish the work at an additional cost.
The Jameses subsequently filed a two-count complaint against Pneuma and
Jones for breach of contract and unjust enrichment, seeking removal of a $10,225
construction lien filed by Pneuma and reimbursement of any “excess . . . funds”
paid to Pneuma under the contract. Pneuma and Jones counterclaimed for breach
of contract and foreclosure of Pneuma’s construction lien.
On November 12, 2014, Pneuma and Jones moved for summary judgment
on their counterclaims and filed an affidavit in support of that motion. That
motion and affidavit claim that Pneuma contracted solely to construct a shell for
the Jameses. Specifically, Pneuma argued that it was required only to “demolish
the window on the east wall only to allow for one of the 5 supporting columns;
trench the foundation, lay re-bars; pour the footer, erect the 5 supporting columns;
install masonry blocks for the new walls which would enclose the addition; form
the tie beam, including laying # 5 re-bars; pour the tie-beam with 3000 psi
concrete; [and] install trusses, fascia board & plywood deck for the roof and slab
on grade for interior.” Pneuma further claimed that it was required to perform
additional work pursuant to a number of change orders and that after performing
95% of this work, the Jameses had failed to pay as agreed.
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In response to this motion and affidavit, Donald and Maureen James filed
identical affidavits. These affidavits contradicted Pneuma/Jones’ affidavits on
virtually every point. Contrary to the Pneuma/Jones affidavit, the Jameses swore
that Pneuma was obligated not just to demolish a window in the east wall, but to
completely demolish the east-side wall and to construct an entirely new wall to
accommodate additional rooms. Contrary to the Pneuma/Jones affidavit, the
Jameses also swore that Pneuma was required not just to pour a footer, but to pour
an entire concrete slab. Contrary to the Pneuma/Jones affidavit, the Jameses swore
that Pneuma was not just to provide tie beams, but to both install them and to build
an entire roof. The Jameses also swore that Pneuma was contractually obligated,
but failed, to partition the space being worked on into six separate rooms and to
provide a dumpster.
On July 23, 2015, Pneuma/Jones’ motion for summary judgement was
heard. During that hearing, the court below, while acknowledging that testimony
could neither be taken nor considered in a summary judgment proceeding,
proceeded to conduct a lengthy interrogation of counter-defendant Donald James.
The trial court also looked at pictures of the jobsite on Mr. James’ cellular
telephone which previously had not been made part of the record or filed in
advance of the motion for summary judgment. Despite the fact that the affidavits
in support of and in opposition to the motion for summary judgment were
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hopelessly contradictory, summary judgment in Pneuma/Jones’ favor was granted.
The court determined that $10,225 was owed to Pneuma/Jones and that
Pneuma/Jones’ construction lien should be foreclosed. Because this effectively
denied the relief the Jameses were seeking, judgment was entered against them on
their claim as well.
The Jameses appeal; for the following reasons, we reverse.
We need go no further than Florida Rules of Civil Procedure 1.510
governing motions for summary judgment to reverse the order on appeal. That
rule expressly states that judgment may be summarily entered “if the pleadings and
summary judgment evidence on file show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fla. R. Civ. P. 1.510(1)(c). Because the affidavits on file in support of and
in opposition to Pneuma/Jones’ motion for summary judgment are diametrically
opposed on virtually every, if not every, issue of material fact at issue here, no
summary judgment should have been entered.
In reaching this conclusion, we do not suggest that had the parties adduced
evidence consistent with their affidavits or had Mr. James been sworn and testified
at a properly noticed bench trial that the result should have been or would have
been different. We only hold here that the trial court could not have concluded that
Pneuma/Jones was entitled to a summary judgment without first impermissibly
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resolving material issues of fact, and that it was improper to consider matters not
properly before the court at the time of the motion for summary judgment. See
Grant Builders Group, Inc., 58 So. 3d at 349 (“The trial court could not have
concluded that South Bay was entitled to judgment as a matter of law without first
resolving the factual dispute presented by the parties’ conflicting affidavits
regarding the payment for the materials for the Summer Place project. Resolution
of such factual disputes is not permissible through summary judgment.”); Charles
E. Burkett & Assocs., Inc. v. Vick, 546 So. 2d 1190, 1191 (Fla. 5th DCA 1989)
(finding that conflicting affidavits created a genuine issue of material fact
precluding entry of summary judgment); Goodman v. Anthony, 269 So. 2d 756,
757 (Fla. 3d DCA 1972) (finding the trial court erred in granting summary
judgment “predicated upon the record before it, which contained sharply
conflicting affidavits from the parties dealing with the issue of completion of the
construction”); see also Estate of Bain v. Bibolini, 711 So. 2d 92, 93 (Fla. 3d DCA
1998) (“[U]nder Florida Rule of Civil Procedure 1.510, ‘oral testimony is
inappropriate at a hearing on a motion for summary judgment,’ as ‘[t]he
determination of disputed material facts cannot be properly accomplished during a
hearing for summary judgment.’” (quoting Orange Lake Country Club, Inc. v.
Levin, 645 So. 2d 60, 62 (Fla. 5th DCA 1994))); Fla. R. Civ. P. 1.510(c) (“The
adverse party shall identify, by notice served pursuant to rule 1.080 at least 5 days
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prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days
prior to the day of the hearing, any summary judgment evidence on which the
adverse party relies. To the extent that summary judgment evidence has not
already been filed with the court, the adverse party shall serve a copy on the
movant pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or by
delivery to the movant's attorney no later than 5:00 p.m. 2 business days prior to
the day of hearing.”).
Accordingly, we reverse the summary final judgment entered below and
remand for further proceedings.
Reversed and remanded.
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