LODGE V. MONROE COUNTY
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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 LODGE CONSTRUCTION, INC. and AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA, Appellants, vs. ** ** ** ** CASE NOS. 3D03-3362, 3D04-250, 3D04-399 & 3D04-423 ** MONROE COUNTY, FLORIDA and BENDER & ASSOCIATES, INC., Appellees. ** LOWER TRIBUNAL NO. 00-617 ** 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 breached the construction contract. finding that Lodge 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 design defects. Lodge contends that the trial court abused its excluding evidence of Bender s alleged window We find that the trial court acted within its discretion where these defects affected the project after Lodge Hendry v. Zalaya, 841 had already stopped construction on it. So. 2d 572, 575 (Fla. 3d DCA 2003)( A trial court has broad discretion rulings concerning will not the admissibility be disturbed discretion. )(citations omitted). 2 of absent evidence an and its abuse of 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. 3
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