author: CONNER, J.

text:
    The SCHOOL BOARD OF BROWARD COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. PIERCE GOODWIN ALEXANDER & LINVILLE, a foreign corporation, Appellee.
    No. 4D11-4808.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied June 4, 2014.

      F. Malcolm Cunningham, Jr., and Amy L. Fischer of The Cunningham Law Firm, P.A., West Palm Beach, for appellant.
    Jack R. Reiter and Avi R. Kaufman of Carlton Fields, P.A., Miami, for appellee.
   CONNER, J.

In this case, the school board contracted with an architectural firm (“the architect”) to perform design services for the renovation of a high school. After construction was completed, the school board sued the architect, contending that numerous “change order items” (“COIs”) were a breach of the contract to provide design services. The COIs were generated due to changes in the initial design plans to meet building code requirements after construction commenced. A jury determined that the architect did not breach the standard of care as to COI 51, the most expensive COI litigated. As to other COIs for which liability was admitted (“COIs-liability-admitted”), the jury awarded damages. However, the circuit court granted remitti-tur as to seven of the COIs-liability-admit-ted.

Regarding COI 51, the school board appeals, contending that the circuit court erred by 1) failing to grant a partial summary judgment determining that the architect breached the standard of care; 2) allowing improper expert testimony regarding the standard of care; and 3) improperly instructing the jury on a negligence standard of care instead of a breach of contract standard of care. The school board also appeals the remittitur of damages. Without discussing all of the issues raised on appeal, we agree that the circuit court erred, and we reverse as to COI 51; as to the COIs-liability-admitted and re-mittitur, we affirm in part and reverse in part.

Factual Background and Circuit Court Proceedings

The parties entered into a forty-eight-page contract for design services for major renovations to a high school. The renovations involved changes to existing buildings and the construction of new buildings. The design services were to be provided in six phases. As typical for such projects, the school board retained the ongoing services of a peer reviewer to monitor and offer a second opinion of the design plans.

During the initial phase of performance under the contract in which the preliminary design plans were being developed for bidding by contractors and submitted for approval by the school board project manager, the peer reviewer submitted comments to a portion of the initial design plans. The peer reviewer contended that a portion of the plans were not code-compliant regarding fire safety. Specifically, the peer reviewer contended that a third floor balcony on one of the buildings required construction of a staircase as an emergency exit in case of a fire. The architect disagreed and suggested an alternative solution to meet the fire code standards that did not require the construction of a staircase. The record shows that the matter was discussed and negotiated over several months before the project proceeded to bidding by general contractors. The peer reviewer repeatedly disagreed with the architect’s alternative solution. The design contract provided that the school board’s chief building official (“building code official”) had final authority to determine the correct interpretation of all applicable building codes, statutes, and regulations. The architect believed its alternative solution was approved by the building code 'official based on oral statements made by the building code official during a meeting with the architect and the school board project manager to discuss the peer review comment regarding the need for a staircase to the third floor balcony. That meeting occurred prior to submission of the initial design plans for bidding by contractors.

After the construction bidding process was concluded and construction commenced, the building code official determined the design plans were not code-compliant and a staircase was required for the third floor balcony. That decision resulted in the redrafting of plans by the architect and the implementation of COI 51. It also resulted in the school board paying more for the renovation because the general contractor’s bid did not contemplate the construction of a staircase, and the initial construction had to be reworked.

There were many other COIs implemented during the construction phase of the project to address other design issues for other parts of the project.

Contending that all of the COIs increased the cost of construction and represented instances of breach of performance under the design contract, the school board filed a three-count complaint against the architect seeking damages for breach of contract, breach of contractual indemnity, and breach of common law indemnity.

The architect alleged two affirmative defenses: one asserting that “[the school boardj’s damages are ‘betterment’ and therefore barred,” and the other asserting that “any of [the school boardj’s claims determined to be First Cost Items, should be barred.” The concept of “first cost,” a key issue in this case, will be discussed below more fully. Notably, the applicable standard of care was not raised in the affirmative defenses or any defensive pleading. As discussed below, the architect raised the issue by way of a counterclaim for declaratory judgment.

The case was initially assigned to the general civil division of the circuit court. As the case neared trial, it was transferred to the “complex civil litigation” division of the circuit court.

COI 51

As to COI 51, the thrust of the school board’s suit was that the architect did not provide initial design plans for bidding by contractors that were code-compliant. One of the issues raised pretrial was the standard of care applicable to the contract between the parties. The school board contended that the standard of care was whether the initial plans were code-compliant as required by the contract (breach of contract standard). The architect contended that the standard of care was whether it performed its duties with ordinary and reasonable skill (negligence standard). The school board filed and argued two separate motions for partial summary judgment on liability as to COI 51, seeking a judgment determining that there was breach of duty, so that if granted, the only issue to be resolved by the jury would be the amount of damages. Both motions for partial summary judgment were denied on the basis that there were material disputes of fact. Neither order denying the motions ruled upon the applicable standard of care.

As stated above, the architect also sought a ruling on the applicable standard of care by filing a counterclaim for declaratory judgment seeking a judicial interpretation of the design contract. The architect filed a motion for summary judgment as to its counterclaim. The school board filed a cross-motion for summary judgment seeking a ruling on the applicable standard of care as well. Unfortunately, due to the case being handled by three different judges and being shifted to the complex civil litigation division, the cross-motions for summary judgment on the counterclaim were not addressed until after the jury was selected, but prior to opening statements.

The circuit court denied both cross-motions for summary judgment on the counterclaim, but after considering the arguments raised, decided the applicable standard of care for the presentation of issues to the jury. The circuit court interpreted the contract to limit damages to those arising from “negligent performance.” As a result, the school board was prohibited from presenting evidence indicating that the initial design plans were not code-compliant. Additionally, the jury was instructed on a negligence theory of liability as requested by the architect, rather than a breach of contract theory of liability as requested by the school board. The jury was specifically instructed not to decide if the design plans were code-compliant.

The jury returned a verdict determining there was no breach of duty by the architect regarding COI 51.

COIs-liability-admitted

Prior to trial, the circuit court entered an agreed order granting partial summary judgment of liability as to fifty-five COIs that were separate from COI 51. In addition to making the amount of damages the sole issue to be resolved by the jury, the agreed order regarding COIs-liability-ad-mitted also granted the architect the right to seek a setoff for the “first costs and/or betterment credit.”

The jury awarded damages for each of the COIs-liability-admitted. Post-trial, the circuit court granted remittitur as to seven of the COIs-liability-admitted, which the school board appeals.

Legal Analysis

COI 51

As previously discussed, the school board contended that the applicable standard of care was whether the initial design plans were code-compliant. The architect contended, and the circuit court agreed, the applicable standard of care was whether the architect prepared plans with ordinary and reasonable skill, which is a negligence standard.

The school board argues on appeal that the circuit court imposed a higher standard of care than the standard imposed by the contract when it insisted that the school board had to prove negligence to be entitled to damages. The architect argues on appeal that the standard that the school board sought to apply amounted to a strict liability standard of care. The architect anticipated that the school board would argue the fact that the final plans required a staircase was proof the initial plans were not code-compliant.

The school board argues that the circuit court erred in denying both of its motions for summary judgment of liability as to COI 51, which were heard months before trial commenced. We disagree and affirm the circuit court’s denials of those motions. However, because the circuit court ruled on the applicable standard of care after the jury was selected, we proceed with consideration of the school board’s argument that the circuit court applied an incorrect standard of care at trial after erroneously interpreting the contract.

Where no ambiguity exists with regard to the parties’ intention, the interpretation of the contract is a question of law. Gainesville-Alachua Cnty. Reg’l Airport Auth. v. R. Hyden Constr., Inc., 766 So.2d 1238, 1239 (Fla. 1st DCA 2000). Pure questions of law are subject to a de novo review. Petit v. State, 92 So.3d 906, 910 (Fla. 4th DCA 2012).

Before discussing our analysis regarding interpretation of the contract, it is useful to discuss a unique aspect of design services rendered by architects and also the common law standard of care regarding architects. In addition, it is useful to point out some additional aspects of the disagreement between the parties.

We agree with an observation the school board made in a footnote in its initial brief:

Lawyers, unlike design professionals, are ethically prohibited from contracting to guarantee the outcome in a case. Doctors are practically precluded from guaranteeing an outcome from a particular medical procedure. Architects, however, are required hy law to comply with codes in designing improvements to real property.

(emphasis added). Unlike other professionals, a unique problem faced by architects is that there are codes and ordinances which more specifically detail how their jobs are to be performed. Those codes and ordinances often provide standards by which other service providers, such as contractors, subcontractors, and inspectors, can contest whether the architect has performed properly as a project is being built- in other words, before the final rendition of the services. Frequently, the building and zoning codes, ordinances, statutes, and regulations are subject to interpretation. In all instances, there is a person or entity with final authority to declare what the code, statute, or regulation means. Usually, the final authority is an agency or public official. Sometimes, a court of law must be the final authority. In this case, by the terms of the contractual agreement, the building code official, an employee of the school board, was to be the final authority as to the interpretation of the applicable building codes, statutes, and regulations.

When there is a dispute between an architect and an owner or contractor as to the interpretation of a building code, statute, or regulation, there is a process for resolving the conflict and getting the correct interpretation from the final authority. Regarding the process for getting an interpretation in this case, the school board contends (1) a dispute regarding interpretation of the building codes arose between the architect and the peer reviewer; (2) the architect did not follow proper procedure to secure an official interpretation from the building code official prior to submitting the design plans for bidding by contractors; (3) oral statements by the building code official regarding interpretation of the code are insufficient and the architect should have obtained a written interpretation; and (4) as a consequence of not securing a written interpretation of the building code prior to drawing the design plans for bidding by contractors, the architect assumed the risk and liability that the plans were not code-compliant.

The architect argues that the law does not require architects to perform their services with perfection and contends that the design plans were prepared with ordinary and reasonable skill in accordance with the standard of care applicable to architects. The architect also contends that so long as the final plans used for construction were code-compliant, it met its contractual obligations.

“As a matter of [common] law, professionals rendering professional services are to perform such services in accordance with the standard of care used by similar professionals in the community under similar circumstances.” Trikon Sunrise Assocs., LLC v. Brice Bldg. Co., 41 So.3d 315, 318 (Fla. 4th DCA 2010); see also CH2M Hill Se., Inc. v. Pinellas Cnty., 698 So.2d 1238, 1240 (Fla. 2d DCA 1997); Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv. Fund, Ltd., 552 So.2d 228, 232 (Fla. 5th DCA 1989). More pertinent to the issues on appeal,

[t]he law is clear that an architect owes a duty of due care to his client in arranging site plans and drawing buildings which are in conformance with building and zoning codes as well as other similar local ordinances. The architect is liable to his client in tort and contract when that duty is breached as to any damages proximately caused by such breach.

Robsol, Inc. v. Garris, 358 So.2d 865, 866 (Fla. 3d DCA 1978); see also Krestow v. Wooster, 360 So.2d 32, 32 (Fla. 3d DCA 1978). Under the common law, “[t]he architect’s undertaking does not imply or guarantee a perfect plan.” Bayshore Dev. Co. v. Bonfoey, 75 Fla. 455, 78 So. 507, 510 (1918). Thus, so long as the architect uses the ordinary and reasonable skill other architects in the community use to draft plans that are code-compliant, the common law standard of care is met. See Edward J. Seibert, A.I.A., Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, 573 So.2d 889, 892 (Fla. 2d DCA 1990) (holding that the architect fulfilled the common law duty by determining in his professional opinion that only one exit was required).

Where an express provision within a professional services contract provides for a heightened standard of care, however, the professional must perform in accordance with the terms of the contract. CH2M Hill Se., Inc., 698 So.2d at 1240 (“[I]f the professional contracts to perform duties beyond those required by ordinary standards of care, the quality of that performance must comport with the contractual terms.”). In other words, an architect can contractually commit to perform under a standard of care higher than the common law standard.

The school board argued to the circuit court that the standard of care usually applicable to architects was heightened by three provisions of the contract:

2.1.3 As to all services provided to this Agreement, the Project Consultant [the architect] shall furnish services by experienced personnel and under the supervision of experienced professionals licensed in Florida and shall exercise a degree of care and diligence in the performance of these services in accordance with the customary professional standards currently practiced by firms in Florida and in compliance with any and all applicable codes, laws, ordinances, etc....
2.1.4 As to any drawings, plans, specifications or other documents or materials provided or prepared by Project Consultant or its Sub-Consultants, the Project Consultant agrees same:
.4 Comply with all applicable laws, statutes, rules and regulations, building codes and Owner's [the school board] guidelines and regulations, which apply to or govern the Project
2.1.5 All professional design services and associated products or instruments of those services provided by the Project Consultant shall:
.1 Be in accordance with all applicable codes, laws, and regulations of any governmental entity, including, but not limited to, [list of regulatory entities] with the Owner serving as the interpreter of the intent and meaning of ... any other applicable code[.]

(emphasis added).

However, the architect argued, and the circuit court agreed, that the applicable standard of care was governed by section 8.1.1., which provides:

To the fullest permitted by law, the Project Consultant shall indemnify and hold harmless the Owner ... from and against any and all liability, claims, causes of action (by whomever brought or alleged and regardless of the legal theories upon which the liability, claims or causes of action are based), losses, damage, costs, expenses and fees ... which are or may be imposed upon, incurred by or asserted against Owner ... to the extent said liability, claims, causes of action, losses, damages, costs, expenses and/or fees are caused by the Project Consultant’s negligent, reckless or intentional wrongful acts or omission, error, misconduct, or commission.

(emphasis added).

In interpreting a contract, the court must review the contested phrases or words as part of the whole contract, rather than looking at the words or phrases separately. Meyer v. Caribbean Interiors, Inc., 435 So.2d 936, 938 (Fla. 3d DCA 1983) (citation omitted). Wherever possible, the provisions of the contract must be read so that they do not conflict even though at first glance they may appear conflicting. Id. “Where a contract is clear and unambiguous, it is the best evidence of the intent of the parties and its meaning and legal effect are questions of law for determination by the court alone.” Critchlow v. Williamson, 450 So.2d 1153, 1156 (Fla. 4th DCA 1984) (citation omitted). If the contract is internally inconsistent, it is the duty of the circuit court to resolve the inconsistency in a manner that renders the contract meaningful and uses a reasonable interpretation of the provisions contained within the document. Id. at 1156-57. Moreover,

[i]n the interpretation of contracts, it must be assumed that each clause has some purpose, and if the question is, as here, whether clauses are compatible or contradictory, the court should interpret the contract in such a way as to give effect to every provision, unless such an interpretation distorts the plain meaning of the agreement.

Hillsborough Cnty. Aviation Auth. v. Cone Bros. Contracting Co., 285 So.2d 619, 621 (Fla. 2d DCA1973).

The architect argued to the circuit court and on appeal that section 8.1.1 applies to first-party liability. Although the school board somewhat inconsistently argued to the circuit court, and on appeal, that section 8.1.1 applies to third-party liability and not first-party liability, we agree with the school board that section 8.1.1 applies to third-party liability, not first-party liability.

“Indemnity is generally defined as the ‘duty to make good any loss, damage, or liability incurred by another’ or ‘[t]he right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty.’” Wendt v. La Costa Beach Resort Condo. Ass’n, 64 So.3d 1228,1230 (Fla.2011) (quoting Black’s Law Dictionary 837 (9th ed. 2009)). “Indemnity contracts are subject to the general rules of contractual construction ... [and] must be construed based on the [express] intentions of the parties.” Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999).

Section 8.1.1 unambiguously states that

the Project Consultant shall indemnify and hold harmless the Owner ... from and against any and all liability, claims, causes of action ... losses, damage, costs, expenses and fees ... which are or may be imposed upon, incurred by or asserted against Owner.

(emphasis added). We do not construe the use of the terms “imposed upon” and “incurred by” to refer to first-party liability; instead, we construe those terms to refer to situations in which the school board may face vicarious liability. Our construction that article 8, and in particular, section 8.1.1, was intended to apply to third-party liability is supported by additional language in sections 8.1.2 and 8.1.3:

8.1.2 In any and all claims against the Owner by an employee of the Project Consultant, or anyone for whose acts the Project Consultant may be liable .... 8.1.31 In the event that any claims are brought or actions filed against the Owner ....

Three of the four sections comprising article 8 of the contract, entitled “Indemnification Clause,” contain language making it clear that the context of the article applies to situations in which claims or suits are brought “against the Owner.” Thus, we conclude that section 8.1.1 is a contractual indemnity agreement by the architect to compensate when a third party is injured; it would not affect the architect’s first-party liability for failure to deliver professional services in accordance with the agreement (count 1 for breach of contract).

Even if we agree with the architect that section 8.1.1 applies to first-party claims, we do not agree with the architect’s and circuit court’s interpretation of the contract to limit first-party claims to those caused by negligence. We construe the words “negligent, reckless or intentional wrongful ” as modifying “acts,” rather than “omission, error, misconduct, or commission.” If “negligent, reckless or intentional wrongful ” were intended to modify “omission, error, misconduct, or commission,” the disjunctive “or” would not have been used, and the last portion of section 8.1.1 would have been written:

... to the extent said liability, claims, causes of action, losses, damages, costs, expenses and/or fees are caused by the Project Consultant’s negligent, reckless or intentional wrongful acts, omissions, errors, misconduct, or commissions.

(emphasis added). Because we do not construe “negligent” to modify “omission, error, misconduct, or commission,” we do not construe section 8.1.1 to limit first-party claims to those caused by negligence, if section 8.1.1 applies to first-party claims at all.

Because building codes sometimes require interpretation, risk is frequently involved as to whether design plans are code-compliant. Contracts with architects for professional services usually contain risk-allocation provisions. Kevin R. Sido et al., Architect and Engineer Liability: Claims Against Design Professionals § 5.01[A] (Aspen Publishers, 4th ed. 2014) (“The contract [for services by an architect] contains the key elements of the undertaking, scope of services, payment terms, risk-allocation provisions and other significant agreements.”). We are satisfied that the parties unambiguously allocated to the architect the risk for costs and expenses attributable to design plans that were not code-compliant. We further agree with the school board that the rights and remedies for indemnity regarding negligence pursuant to article 8. were in addition to, and not a limitation upon, the rights and remedies for breach of performance required by article 2.

Applying the legal principles discussed above regarding interpretation of contracts, we agree with the school board that the plain language of sections 2.1.3, 2.1.4.4, and 2.1.5.1 requires, during all phases of the architect’s performance, delivery of design plans for a building that would be code-compliant, rather than merely requiring plans prepared with ordinary and reasonable skill services. The fact that all three sections specifically state that all design plans were to be in compliance with all applicable codes, and only once makes reference to “customary professional standards,” persuades us that the architect committed itself to a higher standard. Thus, we reject the architect’s argument that so long as the final plans provide for a code-compliant building, its duty for professional services was met.

We agree with the school board that the circuit court’s erroneous interpretation of the contract resulted in the jury being instructed on an erroneous standard of care, and the circuit court improperly limiting expert testimony to a negligence standard of care. Thus, we reverse for a new trial on the claims involving COI 51. Remittitur of Damages as to COIs-Liability-Admitted

The jury awarded damages for each of the COIs-liability-admitted. The architect moved for remittitur as to ten of the COIs-liability-admitted. The circuit court granted remittitur as to seven of the COIs-liability-admitted: COIs 11, 19, 46, 56, 57, 73, and 93. The school board appeals, contending that the circuit court erred in granting remittitur as to all seven COIs.

As to COIs 46, 56, 57, 73, and 93, the architect’s motion sought remittitur contending that the jury awarded the full amount of the COIs, even though the school board’s own damage expert testified that each of those COIs should be reduced by the amount of “first cost.” As to COIs 11 and 19, the school board’s damage expert opined there was no “first cost” attributable to them, but offered no explanation to support that opinion. On cross-examination, the school board’s damage expert admitted she deferred to the school board’s architectural expert as to whether there was a “first cost” associated with those two COIs. The school board’s architectural expert never offered an opinion as to whether there was a “first cost” associated with COIs 11 and 19; however, the architect’s expert testified that there was a “first cost” associated with both COIs. Thus, the architect contended that because there was insufficient evidence to support an award of the full amount for COIs 11 and 19, remittitur was appropriate to reduce the award by the amount of “first cost” identified by the architect’s expert.

In its written response to the motion, the school board argued that remittitur was not proper because the jury awards were not so excessive as to shock the judicial conscience; it was the jury’s function to weigh conflicting evidence, the jury had a right to disregard expert testimony if it felt it was not credible, and the school board presented competent evidence to support a determination that it was entitled to the full amount that the school board paid for each COL

On appeal, both sides repeat their arguments made to the circuit court, but in a much more abbreviated fashion.

In reviewing the order granting remittitur, we face á preliminary problem: the order does not explain the reason or reasons for granting remittitur, and the record does not contain a transcript of the hearing on the motion for remittitur. We have previously stated that trial courts are required to state their reasons justifying a remittitur. Adams v. Saavedra, 65 So.3d 1185, 1188 (Fla. 4th DCA 2011) (citations omitted). Conclusory justifications without an articulated factual basis are insufficient. Id. at 1188-89; see also Wackenhut Corp. v. Canty, 359 So.2d 430, 434 (Fla.1978) (“In requiring the entry of a remitti-tur to correct an excessive verdict the rule is that the amount of the excess must clearly appear from the record.”) (citation omitted). A remittitur granted without explanation leaves the appellate court “to grasp at straws” when the order is under review. Wackenhut Corp., 359 So.2d at 434. As the supreme court said in Laskey v. Smith, 239 So.2d 13,14 (Fla.1970),

A jury’s determination of damage is reviewable by the trial judge on precisely the same principles as govern his superintendence of determinations of liability. Mr. Justice Drew stated them clearly in Hodge v. Jacksonville Terminal Company, Fla., 234 So.2d 645, opinion filed April 22, 1970. The record must affirmatively show the impropriety of the verdict or there must be an independent determination by the trial judge that the .jury was influenced by considerations outside the record.

Id.

Either party could have sought leave for this court to relinquish jurisdiction to the circuit court for the entry of an order explaining the reasons for remittitur, but neither party made that request. We decline to relinquish jurisdiction sua sponte. Instead, we have made an independent review of the record to address the school board’s arguments contending that the circuit court erred in granting remittitur. Even without a transcript of the hearing on the motion, we are satisfied that the circuit court agreed with the contentions made in the architect’s motion, which raised arguments solely revolving around the issue of “first cost.”

Before addressing the school board’s arguments on appeal regarding remittitur, it is helpful to discuss the concept of “first cost” as it relates to damages in this case. The architect raised an affirmative defense of “first cost,” asserting that “any of [the school boardj’s claims determined to be First Cost Items, should be barred.” Although neither party, in the circuit court or on appeal, has focused much discussion on the legal support for the concept of “first cost,” and neither party has stated a clear definition of the concept, we use context to determine the meaning. We understand, from the arguments presented in the circuit court and the testimony of experts in the case, that damages collected by the school board for the COIs should not include costs for construction that the school board would have incurred if the initial design plans matched the final design plans.

Regarding the measure of damages in breach of contract cases,

[i]t is well-settled that the purpose of damages is to restore an injured party to the same position that he would have been in had the . other party not breached the contract. Capitol Envtl. Servs., Inc. v. Earth Tech, Inc., 25 So.3d 593, 596 (Fla. 1st DCA 2009); Mnemonics, Inc. v. Max Davis Assocs., Inc., 808 So.2d 1278, 1280 (Fla. 5th DCA 2002). In restoring the injured party to the “same position,” he “is not entitled to be placed, because of that breach, in a position better than that which he would have occupied had the contract been performed.” Madison Fund, Inc. v. Charter Co., 427 F.Supp. 597, 608 (S.D.N.Y.1977) (applying Florida law); see Restatement (Second) of Contracts § 347 cmt. A (1981) (“Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of his bargain by awarding him a sum of money that will ... put him in as good a position as he would have been in had the contract been performed.”).

Lindan v. Dalton Hotel Corp., 49 So.3d 299, 305-06 (Fla. 5th DCA 2010). It would appear that the concept of “first cost” is to assure that a party entitled to damages is not “placed, because of th[e] breach, in a position better than which he would have occupied had the contract been performed” as agreed. For example, if the school board would have paid a cost for construction in accordance with the code-compliant final design plans, an award of a COI expense against the architect attributable to a change in the initial design plans for the same cost would put the school board in a better position than if the design services had been performed as agreed. Stated another way, if there had been no change between the initial plans drawn for bidding by contractors and the final construction plans, the school board would have been solely responsible for paying all construction expenses incurred for the renovation.

Although our research has revealed no Florida cases discussing the concept of “first cost,” the Fifth District seemed to use a similar concept in Lochrane Engineering, in which it addressed the proper measure of damages against a design engineer who negligently designed an inadequate, but repairable, septic tank system. Lochrane Eng’g, 552 So.2d at 230. In that case, the owner of the property sued the developer who sold the property to him. Id. The developer cross-claimed against the engineer and the septic tank contractor. Id. The expert for the plaintiff opined the best solution was to connect the property to the city’s sewer system and the estimated cost of the feasibility study of that alternative was $17,800. Id. If connection to the sewer system was feasible, the cost of connection would be $94,820. Id. The expert for the defense opined that the inadequate septic system could be repaired in either of two ways: (1) by adding a secondary tank and enlarging the drain fields at an estimated cost of $8000, or (2) by installing an aerobic system to aerate and improve the quality of the effluent from each tank at an estimated cost of $25,000. Id. The trial court entered a judgment against the developer-seller, the septic tank contractor, and the engineer for $45,000. Id. The damage award comprised $3000 for costs to make the system temporarily functional, $25,000 for installation of an aerobic system, and $17,000 for the feasibility study. Id. at 230-31. The Fifth District reversed the award of damages for the feasibility study and directed the trial court to enter a judgment of $28,000 (for costs to make the system temporarily functional and for installation of the aerobic system). Id. at 233-34.

In conducting its analysis regarding the measure of damages against the engineer, the Fifth District used a hypothetical example. Id. at 233. The court said that if an engineer negligently designed a 1000 square feet drain field, and it was subsequently determined that an adequate design required a 1200 square feet drain field, the owner, not the engineer, should pay for the additional 200 square feet of drain field because the necessity for the additional 200 square feet of drain field was caused by the owner’s need to dispose of the sewerage produced. Id. at 232-33. However, the court then observed that this does not mean an engineer is never liable for damages that properly flow from his professional negligence. Id. at 233. The court went on to say, “if the cost of later installing the additional 200 feet of drain field costs more than it would have cost if installed as part of the original undertaking, the engineer would be liable for the difference as well as any other consequential damages.” Id. The court further concluded a reduction in damages against the engineer was required because “there was inadequate evidence as to a difference, if any, between later repairing or improving the insufficient septic tank system and the cost of originally installing an adequate system, for which difference the engineer would be liable in damages if legally liable at all.” Id. We understand the Fifth District in Lochrane Engineering to be employing a concept similar to “first cost” used by the parties and the circuit court in this case.

The Fifth District has also seemingly employed a-concept similar to “first cost” in Soriano v. Hunton, Shivers, Brady & Associates, 524 So.2d 488 (Fla. 5th DCA 1988), a breach of contract case against an individual architect. In Soriano, a bank hired an architect firm to design a bank building. Id. at 489. The architectural firm subcontracted part of the design plans to Soriano, another architect. Id. After construction commenced, the builder asserted the design plans were defective. Id. The architectural firm disagreed. Id. After two engineering firms were consulted and both engineering firms agreed the design plans were defective, new design plans were prepared which required tearing out some of the partially constructed building and resulted in greater expense to the bank. Id. The architectural firm incurred liability for damages suffered by the bank, and as a result, the architect firm sued Soriano for breach of contract and indemnification. Id. Soriano contended on appeal that he was not responsible for those costs which would have necessarily been incurred and paid for by the bank had the modifications been a part of the original design. Id. The Fifth District agreed and reduced the damage award against Soriano for those costs which would have necessarily been incurred and paid for by the bank had the modifications been a part of the original design. Id. at 490.

We now address the remittitur in this case. The circuit court’s determination on an issue of remittitur is reviewed using an abuse of discretion standard. Rowlands v. Signal Constr. Co., 549 So.2d 1380, 1382 (Fla.1989). As the architect correctly argues, the circuit court is required to order remittitur if: “it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages;” “the trier of fact took improper elements of damages into account;” and “the amount awarded is [not] supported by the evidence.” § 768.74(5), Fla. Stat. (2013).

The school board argues that the circuit court erred by shifting the burden of proof as to the affirmative defense of setoff. The school board’s argument hinges on the contention that as to COIs 46, 56, 57, 73, and 93, the architect presented no evidence as to the “first costs,” whereas the school board did present such evidence. The school board cites no cases which hold that the failure to present evidence by the defendant asserting a defense waives the defense, or serves as a procedural bar for the fact-finder to find the defense has been proven, where evidence of the defense is supplied by the plaintiff. Cf. Lochrane Eng’g, 552 So.2d at 233 (“The developer-seller’s cross-claim against the engineer should not have been dismissed merely because the developer-seller, as cross-claimant, did not affirmatively put on evidence if the cross-claim was supported by evidence presented by any party in the case and it was.”).

The school board also argues that the jury was free to accept or reject all expert testimony on “first cost” and could have reasonably concluded there was no “first cost” expense associated with the COIs. However, our review of the record reveals it was the school board, not the architect on cross-examination, which led its damage expert to opine about the amount of “first cost” attributable to each of those COIs. The school board’s damage expert did not opine that the school board was entitled to the full amount paid for those COIs. More importantly, in its closing argument, the school board specifically argued that in calculating damages for the COIs-liability-admitted, the jury should deduct the amount of “first cost” as testified by their damage expert, from the total amount paid by the school board for each COI. Thus, as to COIs 46, 56, 57, 73, and 93, we agree that the record supports the conclusion that the jury ignored the evidence in reaching a verdict, or misconceived the merits of the case relating to the amounts of damages, and remittitur equal to the “first cost” for each of those COIs was proper.

As to COIs 11 and 19, the school board’s damage expert opined that if the initial design plans were code-compliant, the “first cost” associated with those COIs could have been completely avoided. The architect’s expert testified that the “first cost” of COIs 11 and 19 could not have been avoided by an initially code-compliant design. Because there was competent, substantial evidence supporting both sides of the issue of whether “first cost” applied to COIs 11 and 19, it was proper for the jury to decide the amount it awarded, and the circuit court erred in granting remitti-tur as to COIs 11 and 19.

Thus, we reverse the judgment entered in favor of the architect regarding COI 51 and remand the case for a new trial, directing the circuit court to apply the standard of care agreed to in the contract, rather than the common law standard of care applicable to architects. We affirm the circuit court’s order for remittitur and the judgment for damages as to COIs 46, 56, 57, 73, and 93. We reverse the circuit court’s order for remittitur as to COIs 11 and 19 and direct the trial court to enter a judgment for damages in accordance with the jury’s verdict as to those COIs.

Affirmed in part and reversed in part and remanded for further proceedings.

LEVINE and FORST, JJ., concur.

      . The six phases were: (1) Schematic Design; (2) Design Development; (3) Construction Document Development; (4) Bidding and Award of Contract; (5) Support of the Construction Contract; and (6) Warranty Administration.

      . One of the summary judgment issues argued in the circuit court and on appeal is whether the architect could legally rely on oral statements of approval of the alternative solution made by the building code official. We do not address that issue because the circuit court made no explicit ruling on the

      . Neither party has directly appealed the denial of the cross-motions for summary judgment.

      . The school board, pretrial, at trial, and on appeal, failed to distinguish liability under count 1 (breach of contract by failure to perform as agreed) from liability under count 2 (breach of contractual indemnity). The architect was able to use this lack of clarity regarding the school board’s theory of liability to persuade the circuit court that the standard of care was whether the architect prepared plans with ordinary and reasonable skill (a negligence standard) by arguing section 8.1.1 was a first-party indemnity agreement requiring proof that damages were caused by negligence. As the architect argues in its answer brief, the school board’s claim under count 2 for contractual indemnity seeking damages for the additional expenses and cost of construction seems to be in the nature of a first-party claim.

      . The fourth section, section 8.1.4, contains an acknowledgment that the architect is voluntarily agreeing to indemnify the school board and that the indemnification obligations survive termination of the contract. Section 8.1.4 provides no insight as to whether indemnity is to apply first-party or third-party.

      . Article 2 of the contract is entitled "Project Consultant Services and Responsibilities”; section 2.1 is entitled "Basic Services.”

      . The school board's damage expert took the position that COIs 11 and 19 were related to COI 51. It appears her deference to the school board’s architectural expert was due to her position that she could offer no opinion as to whether COI 51 was necessitated because the design plans were not code-compliant.

      . If the purpose of damages in contract actions is to restore an injured party to the same position that he or she would have been had the other party not breached the contract, arguably speaking, it is the obligation of the plaintiff to factor "first cost" expenses in calculating damages. Neither party raised the issue on appeal or in the circuit court as to which party has the burden of proof regarding "first cost." Thus, we do not address the issue either.

      . Although the court in Lochrane Engineering dealt with liability arising from professional negligence, since a breach of duty by a design professional can be pursued, in most cases, as a tort or breach of contract, we see no reason to conclude the Fifth District would have used a different analysis if the suit was for breach of contract.

      . We agree with the school board that the amounts awarded for COIs-liability-admitted are not excessive so as to shock the judicial conscience. However, we disagree that such a finding is always necessary to justify remitti-tur.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    MIAMI FOURTH, LLC, Appellant, v. GC LOUNGE, LLC, Appellee.
    No. 3D13-2311.
    District Court of Appeal of Florida, Third District.
    March 19, 2014.
    Rehearing Denied April 11, 2014.

      Rennert Vogel Mandler & Rodriguez, P.A., and Jason R. Block and Thomas S. Ward, Miami, for appellant.
    Silver & Garvett, P.A., Scott A. Silver and Abigail Lewis-Fishkin, Miami, for ap-pellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   LOGUE, J.

In this eviction action, Miami Fourth, LLC, the landlord, appeals a final judgment entered in favor of GC Lounge, LLC, the tenant. The trial court concluded that the landlord failed (1) to comply with a contractual condition precedent to filing the action — delivering the default notice “by certified mail, return receipt requested, to the parties’ respective addresses- set forth in the [lease’s] preamble”— and (2) to prove a material breach of the lease agreement. Because competent, substantial evidence supports the trial court’s finding that the landlord failed to deliver the default notice to the tenant’s address, we affirm on this issue. See generally Stevens v. Cricket Club Condo., Inc., 784 So.2d 517, 518 (Fla. 3d DCA 2001) (quoting GNB, Inc. v. United Danco Batteries, Inc., 627 So.2d 492, 493 (Fla. 2d DCA 1993)) (“As an appellate court, it is not our function to reweigh the evidence but, rather, to view the record to determine if it contains competent and substantial evidence to support the conclusions of the trier of fact.”).

In regards to the second issue, any determination on the merits of the landlord’s claims was premature in light of its failure to comply with a contractual condition precedent to filing suit. We therefore vacate that portion of the final judgment.

Affirmed, in part, and vacated, in part.


author: SHEPHERD, C.J.

text:
    Javarus Lamont MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1848.
    District Court of Appeal of Florida, Third District.
    March 19, 2014.
    Javarus Lamont Morgan, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SALTER and EMAS, JJ.
   SHEPHERD, C.J.

This is an appeal by Javarus Morgan from the denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Morgan asserts that section 775.087(2)(d), commonly known as Florida’s “10-20-Life” Statute, does not authorize consecutive minimum mandatory sentences for multiple qualifying crimes committed during the same criminal episode when the defendant possesses but does not discharge a firearm. We hold, as did the First District Court of Appeal in Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (en banc), belated discretionary rev’ granted, 123 So.3d 1148 (Fla.2013), that section 775.087(2)(d) unambiguously requires that “any mandatory minimum term required by section 775.087(2) — whether the defendant fires a gun, or only carries or displays it — shall be imposed consecutively to any other term imposed for any other felony.” We further certify conflict with Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006).

Affirmed. Conflict certified.


author: PER CURIAM.

text:
    BANK OF AMERICA, N.A., etc., Appellant, v. Felix GASPARD a/k/a Felix I. Gaspard, Appellee.
    No. 3D13-2124.
    District Court of Appeal of Florida, Third District.
    March 19, 2014.
    Van Ness Law Firm, PLC and Morgan L. Weinstein (Deerfield Beach); McGuire Woods LLP, and Sara F. Holladay-Tobias, Emily Y. Rottmann, and C. Harold Houston, III (Jacksonville), for appellant.
    Felix Gaspard, a/k/a Felix I. Gaspard, in proper person.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   PER CURIAM.

We treat the order on appeal as an order granting a new trial and affirm because the trial court did not abuse its discretion in granting the motion. See generally Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999) (“When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion”).


text:
    Ghislaine BERTHIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3897.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied June 4, 2014.
    Thomas A. Kennedy, Vero Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, 124 So.3d 757, 763 (Fla.2012).

TAYLOR, MAY and CIKLIN, JJ., concur.


text:
    Oscar JOHNNY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2456.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2014.
    Rehearing Denied May 30, 2014.
    Ivy R. Ginsberg of Ivy R. Ginsberg, P.A., Aventura, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke Robert Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s untimely and successive rule 3.850 motion for postconviction relief. Appellant has not shown that the court erred in denying his claim for relief under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473,176 L.Ed.2d 284 (2010).

The trial court denied appellant’s prior motion because he signed and initialed a plea form that advised him unequivocally that his plea “will” result in his deportation. Appellant has no difficulty with the English language and averred during the plea colloquy that he had read and understood the information on the plea form. This refutes the allegation that he entered the plea unaware that he would be deported. Jackson v. State, 112 So.3d 591 (Fla. 4th DCA 2013); Ioselli v. State, 122 So.3d 388, 390 (Fla. 4th DCA 2013); Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999).

Affirmed.

MAY, CIKLIN and FORST, JJ., concur.


text:
    Evienne MERCIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2659.
    District Court of Appeal of Florida, Third District.
    March 19, 2014.
    Evienne Mercier, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Mungin v. State, 932 So.2d 986 (Fla.2006).


text:
    Vincent APICE, Appellant, v. Paulina APICE, Appellee.
    No. 3D13-3194.
    District Court of Appeal of Florida, Third District.
    March 19, 2014.
    Barry S. Franklin'and Joseph A. Costello, for appellant.
    WNF Law and Daniel Foodman and Dennis J. Wouters; Kahn & Resnik and Marcy S. Resnik (Dania), for appellee.
    Before WELLS, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Martinez v. Kurt, 45 So.3d 961 (Fla. 3d DCA 2010); Toiberman v. Tisera, 998 So.2d 4 (Fla. 3d DCA 2008).


text:
    MIAMI LAKES I, LLC, etc., et al., Appellants, v. OCEAN BANK, a Florida banking corporation, Appellee.
    No. 3D13-848.
    District Court of Appeal of Florida, Third District.
    March 19, 2014.

      Salazar Jackson and Luis Salazar and Aaron P. Honaker, for appellants.
    Pathman Lewis and Peter L. Meltzer and John A. Moore, for appellee.
    Before WELLS, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Vidal v. Liquidation Props., Inc., 104 So.3d 1274 (Fla. 4th DCA 2013).


author: WARNER, J.

text:
    W.R., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D13-3508.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.

      Richard F. Joyce of Law Office of Richard F. Joyce, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
    Hillary S. Kambour, Sanford, for appel-lee Guardian Ad Litem Program.
   WARNER, J.

A father appeals an order adjudicating his minor children dependent. We affirm without comment on the adjudication of dependency as to the appellant’s minor daughter, C.R. We reverse the adjudication of dependency as to the appellant’s minor son, M.R., for further proceedings.

The trial court found from the evidence that “the Father engaged in a pattern of physical abuse of both of his children which significantly impaired their physical and mental health.” The statutory definition of “abuse” requires “any willful act or threatened act that results in any physical [or] mental ... injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (2013). “Harm” is defined as occurring “when any person ... [i]nflicts ... upon the child physical, mental, or emotional injury.” § 39.01(32)(a), Fla. Stat. (2013). The statute lists several factors to consider in determining whether harm has occurred and also lists the type of injuries which constitute harm. The only finding by the court as to M.R. involved one incident where the father struck the child in the head. No evidence was presented that the child suffered any harm from this incident, not even a bruise. Nor was there any evidence of emotional or psychological trauma, as there was regarding the daughter. The Department failed to prove dependency as to the father regarding M.R. based upon section 39.01(2), Florida Statutes.

As there was substantial evidence of abuse and harm to the daughter based upon the father’s conduct, the court’s ruling regarding M.R. depended in large part on abuse to the daughter. The abuse of one child is insufficient in and of itself to prove that a parent’s other children are also dependent. In re S.M., 997 So.2d 513, 515 (Fla. 2d DCA 2008); see also In re M.F., 770 So.2d 1189, 1194 (Fla.2000). “[T]he Department must establish the required elements of dependency as to each child individually.” In re S.M., at 515.

Although the Department also alleged that the child was dependent based upon a substantial risk of imminent abuse or neglect pursuant to section 39.01(15)(f), Florida Statutes (2013), the trial court made no findings with respect to the risk of imminent abuse. The Department must prove that there is a nexus between the parent’s abuse of one child and the risk of abuse to another child. “This analysis focuses on the parent’s behavior and whether that behavior or the circumstances surrounding that behavior permit a reasonable prediction that the parent will visit similar abuse or neglect on the child’s siblings in the near future.” In re S.M., 997 So.2d at 515.

The trial court failed to make findings regarding the risk of imminent abuse of M.R. as required to support an adjudication of dependency as to him. It is not readily apparent that the type of abuse suffered by the daughter would necessarily be visited on the son. Much of the abuse inflicted by the father on the daughter arose from incidents involving her interaction with young men. Nevertheless, the father’s overall behavior was sufficiently concerning to the trial court that we reverse and remand for further proceedings for the trial court to determine whether the Department proved that the son is dependent based upon a substantial risk of imminent abuse by the father.

Affirmed in part; reversed in part and remanded with directions.

FORST and KLINGENSMITH, JJ., concur.


text:
    Jean L. CORIOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3891.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Antony P. Ryan, Regional Counsel, and Randall Berman, Senior Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

The defendant appealed from a conviction and sentence for attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder with a firearm. This court affirmed. Coriolan v. State, 77 So.3d 840, 840 (Fla. 4th DCA 2012). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I ”). Williams I held that the giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder. Id. at 73.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The Court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27. The Court then, by order, accepted jurisdiction of this case, quashed this court’s opinion in this case, and remanded for reconsideration upon application of its opinion in Williams II. Coriol-an v. State, 134 So.3d 446 (Fla. Jan. 2014).

In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. We reverse and remand for a new trial on the charge of attempted second degree murder with a firearm.

Reversed and remanded for proceedings consistent with this opinion.

CIKLIN, GERBER and CONNER, JJ., concur.


text:
    GROVE ISLE ASSOCIATION, INC., Appellant, v. GROVE ISLE ASSOCIATES, LLLP, et al., Appellees.
    No. 3D10-2312.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.

      John C. Lukács, P.A. and John C. Lu-kács, Coral Gables; Ross & Girten and Lauri Waldman Ross, Miami, for appellant Grove Isle Association, Inc.
    Law Offices of Paul Morris, P.A. and Paul Morris; Kluger Kaplan Silverman Katzen & Levine and Abbey L. Kaplan, Miami, for appellees Grove Isle Associates, LLLP, Grove Isle Yacht Club Associates, and Grove Spa, LLC.
    Campbell Law Firm, PLLC and Dennis M. Campbell and Rossana Navarro, Miami, for appellee Westgroup Grove Isle Associates, Ltd.

      Levine Kellogg Lehman Schneider + Grossman LLP and Stephanie Reed Tra-band, Miami, and Karene Lynn Tygenhof, for appellees Grove Hotel Partners, LLC, Grand Heritage Hotel Group, LLC, and GH Grove Isle Management, LLC.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   PER CURIAM.

Grove Isle Association, Inc., (the “Condominium Association”) appeals an order dismissing, with prejudice, its claims for injunctive and declaratory relief, unjust enrichment, and breach of contract based on the expiration of the applicable statute of limitations and the doctrine of laches. For the reasons set forth below, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Fair Isle, a private island in Coconut Grove, Florida, is developed with three residential condominium towers, collectively known as “Grove Isle,” and a hotel, club, marina, and spa. The towers were submitted to condominium ownership pursuant to a Declaration of Condominium recorded January 23, 1979 (the “Declaration”). The unit owners of each of the residential condominium towers are members of Grove Isle Association, Inc., an entity organized pursuant to Chapter 718, Florida Statutes.

Grove Isle unit owners and visitors access Fair Isle by way of a private bridge over Biscayne Bay. A roadway on Fair Isle permits traffic between the residential condominium towers and the hotel, club, marina, and spa. The private bridge and roadway are owned and/or controlled by Grove Isle Associates, LLLP (the “Hotel and Club Owner”), Grove Isle Yacht Club Associates (the “Marina Owner”), and CII Spa, LLC, the owner of a fifty percent interest in Grove Spa, LLC (the “Spa Owner”). The Declaration imposes the obligation to maintain and repair the private bridge and roadway upon the Condominium Association.

From 1996 through late 2008, the hotel and club were operated by Westgroup Grove Isle Associates, Ltd. (the “Former Hotel and Club Manager”). The marina and spa were managed by other entities during this time. In November 2008, Grove Hotel Partners, LLC (the “Resort Lessee”) leased the hotel, club, and spa property and assumed responsibility for the management and operation of these facilities (the “Resort”). The Resort Lessee manages and operates the Resort through Grand Heritage Hotel Group, LLC and its affiliate, GH-Grove Isle Management, LLC (collectively, the “Current Resort Managers”).

On July 10, 2009, the Condominium Association filed its Complaint against the Hotel and Club Owner, the Marina Owner, the Spa Owner, the Former Hotel and Club Manager, the Resort Lessee, and the Current Resort Managers. The Condominium Association’s Complaint asserted seven causes of action. The trial court’s order dismissing Counts I-VT is before us for review.

In Count I, the Condominium Association sought injunctive relief against the Hotel and Club Owner, the Spa Owner, the Resort Lessee, and the Current Resort Managers (collectively, the “Count I Defendants”). The Condominium Association alleged that, pursuant to a final judgment entered July 29, 1977 (“Final Judgment”), enjoyment of the club’s amenities (a restaurant and lounge, private banquet room, health spa, swimming pool, and tennis courts) was limited to members of the Condominium Association and their guests, members of the club and their guests, and registered hotel guests, and no separate memberships permitting use of the tennis courts were authorized. The Condominium Association sought an order prohibiting the Count I Defendants from allowing unauthorized members of the public to use the club’s amenities.

In Count II, the Condominium Association sought declaratory relief in the form of an order declaring Sections 3.2, 5.1, and 15.4(c) and (d) of the Declaration unfair, unreasonable, and unconscionable, and consequently, void and unenforceable, pursuant to sections 718.122 and 718.302, Florida Statutes. The Condominium Association alleged that these provisions of the Declaration give Fair Isle’s developer an “unjust and undeserved advantage” over the Association and its members.

Section 3.2 of the Declaration recognizes that the private bridge, internal roadways, and amenities, among other things, “are utilized to provide services and other benefits to apartment unit owners and the Association.”

Therefore, apartments and the owners thereof within the condominium operated and managed by the Association shall be charged with the cost and expense of maintaining, managing and operating the various properties, facilities and services hereinabove described notwithstanding the fact that such properties, facilities and services are located or rendered outside the con-dominium_ The maintenance, management and operation of the described properties, facilities and services shall be the responsibility of the Developer or its successors or assigns. All costs and expenses incident to providing the maintenance, management and operation of the properties, facilities and services herein described shall be within the sole discretion of the Developer or its successors or assigns and shall be assumed and paid bg each apartment owner as a common expense.... Other owners of real property located on Fair Isle, their successors, assignees and lessees, including the Grove Isle Club, are not subject to contribute to the costs and expenses of maintaining, managing or operating the various properties, facilities and services ....

(Declaration § 3.2 (emphasis supplied).) The Condominium Association claims that Section 3.2 is unfair and unreasonable because it requires the unit owners to bear all the costs of maintenance, management, and operation of Fair Isle’s facilities and amenities, even though the facilities and amenities are also used by other Fair Isle property owners and persons other than members of the Condominium Association.

Section 5.1(d) of the Declaration reserves “a perpetual non-exclusive easement over, through, across and upon all walkways, driveways, ramps, parking spaces and other parking facilities” in favor of the developer and its successors and assigns. The provision also requires the developer (and its successors and assigns) to grant “perpetual non-exclusive rights to the use of the easement ... to owners and lessees of Fair Isle.” The Condominium Association claims that this provision is unfair and unreasonable because it requires the unit owners to bear all the costs of maintaining, managing, and operating these areas of Fair Isle, when the areas must be shared with other Fair Isle property owners.

Sections 15.4(c) and (d) limit the Condominium Association’s ability to amend the Declaration. Section 15.4(c) prohibits any amendment that would “[o]perate to alter, amend, modify or effect the rights and privileges granted to or reserved by the Developer without the written consent of the Developer.” Section 15.4(d) contains an identical provision running in favor of “Grove Isle Club.” The Condominium Association claims that these provisions “effectively preclude the Association from amending the Declaration to remove the onerous grants and reservations in favor of the Developer, its successors and assigns and the Grove Isle Club.”

In Count III, the Condominium Association asserted an action for unjust enrichment against the Hotel and Club Owner, the Marina Owner, and the Spa Owner, and sought to recover the value of its maintenance, management, and operation payments pursuant to Section 3.2 of the Declaration.

In Count IY, the Condominium Association sought declaratory relief related to Section 12.9 of the Declaration, which governs membership in the club. Section 12 imposes restrictions applicable to the condominium property and deemed to run with the land. Section 12.9 prohibits any “person, firm or corporation” from owning or leasing any unit in the condominium for a term of six months or more unless the person, firm, or corporation is a member of. the club. The Condominium Association claims this provision is unfair and unreasonable because membership in the club is at the discretion of the club’s directors; thus, Section 12.9 permits the club’s directors to control who may (and may not) own, lease, or sell a unit in the condominium. The Condominium Association demands an order declaring this restriction unfair and unreasonable and a restraint on alienation.

The Condominium Association also challenges Section 12.9(f) of the Declaration, which provides:

The total financial obligation for membership in the Grove Isle Club shall be the initial membership fee. The unit owners and the Association shall not be responsible for providing any costs and expenses for the maintenance, management and operation of the club facilities nor will such costs and expenses become an obligation of the unit owners or the Association unless provided for by an amendment to this Declaration adopted as required by Section 15 of this Declaration.

The Condominium Association contends that Section 12.9(f) prohibits the club from imposing and collecting annual assessments or dues from the unit owners, because the Declaration does not contemplate any additional membership fees other than the initial membership fee. The Condominium Association alleges that, notwithstanding Section 12.9(f), the club requires unit owners to pay annual assessments. These assessments are periodically increased. The Complaint alleges that the assessments are a product of the club’s “unique bargaining power,” i.e., the unit owners must agree to pay the assessments or risk expulsion from the club, which is a condition of ownership under Section 12.9 of the Declaration. With respect to Section 12.9(f), the Condominium Association seeks an order limiting the unit owners’ “total financial obligation” to an “initial membership fee” and declaring that the club is not authorized to assess annual membership fees or dues.

In Count V, the Condominium Association sued the Hotel and Club Owner for breach of contract, alleging an ongoing violation of Section 12.9(f) of the Declaration (which limits the “total financial obligation” of unit owners, with respect to club membership, to an “initial membership fee”). The Condominium Association seeks to recover annual club membership fees and dues paid by unit owners in excess of the initial membership fee.

In Count VI, the Condominium Association asserted an action for unjust enrichment against the Former Hotel and Club Manager, the Resort Lessee, and the Current Resort Managers. The Condominium Association seeks to recover the value of annual club membership fees and dues paid by the unit owners in excess of the “initial membership fee” provided for in Section 12.9(f) of the Declaration.

In Count VII, the Condominium Association sought injunctive relief against the Resort Lessee and the Current Resort Managers in the form of an order prohibiting the Count VII Defendants from generating excessive noise. Count VII remains pending in the trial court.

Following a hearing on motions to dismiss filed by the Defendants, the trial court dismissed the Condominium Association’s Complaint with prejudice, concluding that Counts I through VI were barred by the applicable statute of limitations and the common law doctrine of laches. The trial court reasoned that the Condominium Association’s claims accrued, at the earliest, in 1979 when the Declaration was recorded, or at the latest, “decades ago” at the time the Developer transferred control of the condominium to the Condominium Association. Because the applicable statute of limitations require claims founded on a written instrument to be commenced within five years, see § 95.11(2)(b), Fla. Stat., and claims for unjust enrichment to be commenced within four years, see Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005), the Condominium Association’s claims were untimely. The trial court further concluded that the doctrine of laches barred the Condominium Association’s claims because it had knowledge of the claims since 1979 and, nevertheless, waited for almost thirty years to file them. The trial court dismissed the Complaint with prejudice, concluding that “any effort to amend or to provide a more definite statement would be futile.”

II. STANDARD OF REVIEW

A. Dismissal

A trial court’s order granting a motion to dismiss is reviewed de novo. Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006); GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635, 636 (Fla. 3d DCA 2009); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003); see also Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (“A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” (quoting Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007))).

A motion to dismiss tests the legal sufficiency of the complaint. Greene, 926 So.2d at 1199. In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party. Greene, 926 So.2d at 1199; Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3d DCA 2010) (reversing dismissal with prejudice where trial court considered facts other than those alleged in the complaint).

Affirmative defenses, such as statute of limitations and laches, are generally matters raised in an answer and not a motion to dismiss. Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987). However, where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the defense bars the action as a matter of law, a motion to dismiss raising the defense is properly granted. Saltponds Condo. Ass’n v. Walbridge Aldinger Co., 979 So.2d 1240, 1244-45 (Fla. 3d DCA 2008); Alexander v. Suncoast Builders, Inc., 837 So.2d 1056, 1057 (Fla. 3d DCA 2002). Because affirmative defenses may be avoided by facts pled in a reply, the allegations of the complaint must also conclusively negate the plaintiffs ability to allege facts in avoidance of the defense by way of reply or dismissal is inappropriate. Rigby, 505 So.2d at 601; Saltponds Condo. Ass’n v. McCoy, 972 So.2d 230, 231 (Fla. 3d DCA 2007).

B. Leave to Amend

A trial court’s order denying leave to amend a pleading is reviewed for abuse of discretion. Rodriguez v. Recovery Performance & Marine, LLC, 38 So.3d 178, 181 (Fla. 3d DCA 2010); Overnight Success Constr., Inc. v. Pavarini Constr. Co., 955 So.2d 658, 659 (Fla. 3d DCA 2007); see also Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998).

“A trial court should give leave to amend a deficient complaint unless ... the complaint shows on its face that there is a deficiency which cannot be cured by amendment.” Unitech Corp. v. Atl. Nat’l Bank of Miami, 472 So.2d 817, 818 (Fla. 3d DCA 1985); see also Thompson v. Bank of N.Y., 862 So.2d 768, 770 (Fla. 4th DCA 2003) (quoting N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 362 (Fla. 4th DCA 1999)); Fla. R. Civ. P. 1.190(a) (“Leave of court [to amend a pleading] shall be given freely when justice so requires.”).

III. DECLARATION OF CONDOMINIUM

A “declaration” or “declaration of condominium” is the instrument or instruments by which a condominium is created. § 718.103(15), Fla. Stat. (2012). “The declaration, which some courts have referred to as the condominium’s ‘constitution,’ strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n v. Jahren, 806 So.2d 452, 456 (Fla.2002). The powers of a condominium association include those set out in section 718.111, Florida Statutes (2012), and, except as expressly limited or restricted by the Condominium Act, those set forth in the declaration of condominium, the bylaws of the association, and the applicable provisions of the state corporations law. § 718.111(2), Fla. Stat. (2012); see also 10 Fla. Jur. 2d Condominiums & Coop. Apts. § 122(2012).

The powers of a condominium association do not appear to include the power to unilaterally void all or any portion of a declaration of condominium. Rather, a declaration of condominium can generally be amended as provided in the declaration. § 718.110(l)(a), Fla. Stat. (2012). If the declaration fails to provide a method of amendment, it may be amended as to all matters, except those described in subsections (4) or (8) of section 718.110, if the amendment is approved by the owners of not less than two-thirds of the units. Id. Thus, “section 718.110 ... provides broad authority for amending a declaration of condominium.” Woodside Vill. Condo. Ass’n, 806 So.2d at 457. “Based upon this broad statutory authority and the provisions for amendment set out in the declaration of condominium, courts have recognized the authority of condominium unit owners to amend the declaration on a wide variety of issues ....” Id.

New unit owners purchase their units subject to the provisions of the declaration. Restrictions which may be found in a declaration of condominium are clothed with a very strong presumption of validity when challenged. Woodside Vill. Condo. Ass’n, 806 So.2d at 457. This presumption arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed. Id. “Such restrictions are very much in the nature of covenants running with the land and they will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right.” Id. at 457 (quoting Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 639-40 (Fla. 4th DCA 1981)).

With respect to the effect of subsequent amendments, the Court in Woodside cited approvingly to this Court’s holding in Flagler Federal Savings & Loan Ass’n of Miami v. Crestview Towers Condominium Ass’n, 595 So.2d 198 (Fla. 3d DCA 1992), which reasoned that since unit owners were on notice of the recorded declaration’s provisions for amendments to the declaration when they purchased the unit, they were bound by the subsequent amendments to the declaration. Woodside Vill. Condo. Ass’n, 806 So.2d at 458-59. The Court in Woodside also cited approvingly to an appellate opinion from Illinois, Apple II Condo. Ass’n v. Worth Bank & Trust Co., 277 Ill.App.3d 345, 213 Ill.Dec. 463, 659 N.E.2d 93, 97-99 (1995), which concluded that when an amendment has been passed by an association’s membership it would be presumed valid and upheld unless it was shown that the restriction was arbitrary, against public policy, or in violation of some fundamental right. Woodside Vill. Condo. Ass’n, 806 So.2d at 459-60.

Furthermore, “although case law has applied the word ‘reasonable’ to determine whether [restrictions in a declaration of condominium] are valid, this is not the appropriate test _ Indeed, a use restriction in a declaration of condominium may have a certain degree of unreasonableness to it, and yet withstand attack in the courts. If it were otherwise, a unit owner could not rely on the restrictions found in the declaration of condominium, since such restrictions would be in a potential condition of continuous flux.” Hidden Harbour Estates, Inc., 393 So.2d at 640.

Because a condominium association may not unilaterally void all or any portion of a condominium’s declaration, in order to successfully challenge the provisions of the declaration in a court of law, the association must show that the declaration’s provisions are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. See Hidden Harbour Estates, Inc., 393 So.2d at 640 (For an association to successfully attack the declaration in court, it needs to demonstrate that a provision of the declaration is “wholly arbitrary in [its] application, in violation of public policy, or that [it] abrogate[s] some fundamental constitutional right,” rather than that it is merely “unreasonable”). Otherwise, the only means by which a declaration of condominium may be amended is either as provided in the declaration itself, or if the amendment is approved by the owners of not less than two-thirds of the units.

IV. ANALYSIS

A. Dismissal Based on Statute of Limitations

The limitations periods applicable here are set forth in section 95.11, Florida Statutes, and discussed below. In Florida, the statute of limitations runs from the time the plaintiffs cause of action accrues. § 95.031, Fla. Stat. (2011). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2011).

1. Claim for Injunctive Relief (Count I)

In Count I, the Condominium Association sought an injunction prohibiting unauthorized members of the public from using the club’s amenities.

The limitations period for “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument” is five years. § 95.11(2)(b), Fla. Stat. (2011); see also Pond Apple Place III Condo. Ass’n v. Russo, 841 So.2d 526, 527 (Fla. 4th DCA 2003) (applying five-year statute of limitations to action to enforce restrictive covenant prohibiting pets in condominium units). Thus, the Condominium Association may not assert any claims for injunctive relief that accrued before July 2004. “To state a cause of action for injunctive relief, a plaintiff must allege ultimate facts which, if true, would establish (1) irreparable injury (that is, injury which cannot be cured by money damages), (2) a clear legal right, (3) lack of an adequate remedy at law and (4) that the requested injunction would not be contrary to the interest of the public generally.” Weekley v. Pace Assembly Ministries, Inc., 671 So.2d 220, 220 (Fla. 1st DCA 1996); see also Fayad v. Mercy Hosp., Inc., 773 So.2d 1244, 1244 (Fla. 3d DCA 2000).

The trial court concluded that “the violations of the settlement agreement in Count I necessarily have been occurring for approximately thirty years, since members began paying their membership dues in 1979.” (Order at 2.) However, the four corners of the complaint do not allege that the payment of membership dues by unit owners is related to use of the Club’s amenities by certain unauthorized members of the public, purportedly in violation of the Final Judgment. It is this injury — use by the unauthorized public — that constitutes the injury alleged by the Association in Count I of its Complaint. The Association’s injunction claim cannot have accrued earlier than the time this injury occurred. It cannot affirmatively be determined from the face of the Complaint when allegedly unauthorized members of the public began using the Club’s amenities. If the members of the public about which the Association complains began using the Club’s amenities within the five-year limitations period, i.e., on or after July 2004, the Association’s claim would not be barred by the statute of limitations. If, however, the unauthorized use began beyond the five-year limitations period, Count I would be barred. Consequently, the trial court’s dismissal of Count I without leave to amend was erroneous.

2. Claims for Declaratory Relief (Counts II and IV)

In Count II, the Condominium Association sought a declaratory judgment announcing that Sections 3.2 (requiring unit owners to pay costs and expenses related to maintenance, management, and operation of properties, facilities and services outside the condominium property), 5.1(d) (reserving to the developer and its successors and assigns an easement over walkways, driveways, and parking spaces and facilities), and 15.4(c) and (d) (requiring developer’s written consent to amend Declaration in certain situations) of the Declaration are void and unenforceable pursuant to sections 718.122 (establishing presumption of unconscionability of lease for use of recreational or other common facilities by condominium unit owners when nine enumerated factors are present) and 718.302, Florida Statutes (“Any grant or reservation made by a declaration ... shall be fair and reasonable.”). In Count IV, the Condominium Association sought a declaratory judgment announcing that portions of Section 12.9 of the Declaration (governing club membership and fees) are void and unenforceable.

The limitations period for “a legal or equitable action on a contract, obligation, or liability founded on a written instrument” is five years. § 95.11(2)(b), Fla. Stat. (2011). Thus, the Condominium Association may not assert any claims for declaratory relief that accrued before July 2004. Pursuant to section 95.031(1), Florida Statutes, the Condominium Association’s claims for declaratory relief accrued when the last element constituting the cause of action occurred. The elements of an action seeking a declaratory judgment require the plaintiff to show there is “[1] a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff; [2] the plaintiffs doubt about the existence or non-existence of his rights or privileges; [3] that he is entitled to have the doubt removed.” State Dep’t of Envtl. Prot. v. Garcia, 99 So.3d 539, 545 (Fla. 3d DCA 2011) (quoting Conley v. Morley Realty Corp., 575 So.2d 253, 255 (Fla. 3d DCA 1991)).

The trial court concluded that the Condominium Association’s claims for declaratory relief accrued “at the time the plaintiffs became bound under the contract—(1979)—or at the latest decades ago when the developer turned over control of the condo to the association.” (Order at 2.) The trial court, however, did not confine itself to the four corners of the Complaint when it determined that the developer turned over control of the condominium “decades ago.” (Order at 2.) The Condominium Association’s Complaint does not identify the date on which turnover occurred, nor can any timeframe be inferred from the allegations in the Complaint or the documents attached thereto. Thus, while we recognize that section 718.124, Fla. Stat. (2011) (tolling a condominium association’s claims in law or equity prior to turnover) may operate to bar Counts II and IV if all the elements of the Condominium Association’s claims for declaratory relief were present at turnover, the trial court could not reach this conclusion on the face of the Complaint as pled by the Condominium Association. Consequently, dismissal on this basis was erroneous. See Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3d DCA 2010) (observing that trial court is “confined to the facts alleged within the four corners of the complaint” when deciding a motion to dismiss).

Count II is premised solely on the allegedly unfair language of certain sections of the Declaration. Count TV, however, is premised on the payment of annual assessments beyond an “initial membership fee,” and asks the trial court to construe the unit owners’ rights and obligations under the Declaration in light of changed circumstances, i.e., the collection of fees in excess of the initial membership fee described in the Declaration. If this change of circumstances occurred within the limitations period, ie., in or after July 2004, the Association’s claim for declaratory relief would not be barred by the statute of limitations. If, however, it occurred beyond the limitations period, the claim would be barred. Because the Condominium Association’s Complaint contains no allegation identifying the date on which unit owners began paying these allegedly excessive annual fees, nor can this information be inferred from the Complaint’s allegations or attachments, the trial court erred when it dismissed Count IV with prejudice.

3. Claims for Unjust Enrichment (Counts III and VI)

In Count III, the Condominium Association demanded the value of its maintenance, management, and operation payments made pursuant to Section 3.2 of the Declaration. In Count VI, the Condominium Association demanded the value of its annual membership fees and dues allegedly paid in violation of Section 12.9(f) of the Declaration.

The limitations period for an unjust enrichment action is four years. Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005); see also § 95.11(3)(p), Fla. Stat. (allowing four years to bring “[a]ny action not specifically provided for in these statutes”). Thus, the Condominium Association may not assert any claims for unjust enrichment that accrued before July 2005 or seek damages for payments made before July 2005. “The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Hillman Constr. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994); see also Swafford, 906 So.2d at 1195.

The trial court concluded that the Condominium Association’s unjust enrichment claims accrued “in or about 1979 when the association’s members first began paying monthly dues.” (Order at 2.) The Condominium Association’s Complaint, however, does not allege the date that the payments began. Consequently, the trial court erred when it dismissed Counts III and VI with prejudice.

4. Claim for Breach of Contract (Count V)

In Count V, the Condominium Association sought to recover annual club membership fees and dues allegedly paid in violation of Section 12.9(f) of the Declaration (limiting club assessments to an “initial membership fee”).

The limitations period for “a legal or equitable action on a contract, obligation, or liability founded on a written instrument” is five years. § 95.11(2)(b), Fla. Stat. Thus, the Condominium Association may not assert any claims for breach of contract that accrued before July 2004. “The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.” Schiffman v. Schiffman, 47 So.3d 925,'927 (Fla. 3d DCA 2010) (quoting Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000)).

The trial court concluded that the Condominium Association’s breach of contract claim accrued “in or about 1979 when the association’s members first began paying monthly dues.” (Order at 2.) “Florida case law consistently holds that a cause of action for breach of contract accrues and the limitations period commences at the time of the breach.” Clark v. Estate of Elrod, 61 So.3d 416, 418 (Fla. 2d DCA 2011) (quoting Technical Packaging, Inc. v. Hanchett, 992 So.2d 309, 313 (Fla. 2d DCA 2008)); see also Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288, 293 (Fla. 3d DCA 2007) (determining that limitations period ran from time contract was breached). However, where an obligation is continuing in nature, a party’s “ongoing nonperformance constitute^] a continuing breach while the contract remain[s] in effect.” City of Quincy v. Womack, 60 So.3d 1076, 1078 (Fla. 1st DCA 2011). The Condominium Association’s Complaint alleged that the Hotel and Club Owner breached the Declaration when it charged annual fees and dues in excess of the initial membership fee, and that this breach is continuing in nature. If the Hotel and Club Owner breached the Declaration within the five-year limitations period, i.e., in or after July 2004, the Association’s breach of contract claim for payment made on or after that date would not be barred by the statute of limitations. Consequently, the trial court erred when it dismissed Count V with prejudice.

B. Leave to Amend

Lastly, we address the trial court’s denial of the Association’s motion for leave to amend its Complaint. We find that the trial court did not have discretion to deny the Association leave to amend. See Fowler v. Paradise Lakes Condo. Ass’n, 133 So.3d 576 (Fla. 2d DCA 2014) (reversing dismissal of complaint with prejudice; “[A] trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once.” (quoting Williams v. Gaffin Indus. Sens., Inc., 88 So.3d 1027, 1030 (Fla. 2d DCA 2012))). “Leave of court [to amend a pleading] shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). “This is generally interpreted to allow a plaintiff to amend his complaint at least one time in an attempt to state a cause of action unless it is clear that a plaintiff cannot in good faith allege a set of circumstances sufficient to state a cause of action.” Lambrix v. Dugger, 547 So.2d 1265, 1265 (Fla. 1st DCA 1989). In light of this well-established law, the trial court’s dismissal of the Condominium Association’s first Complaint with prejudice was an abuse of discretion. See Lambrix, 547 So.2d at 1265; see also W. Kendall Holdings, LLC v. Downrite Eng’g Corp., 112 So.3d 614, 616 (Fla. 3d DCA 2013) (reversing dismissal with prejudice as “plaintiff is entitled to amend a complaint once as of right before a responsive pleading is filed”); Posey v. Magill, 530 So.2d 985, 985 (Fla. 1st DCA 1988) (“Unless it is clear from the face of a complaint that amendment would be futile, failure to grant a plaintiff at least one opportunity to amend his complaint constitutes an abuse of discretion”).

V. CONCLUSION

For the reasons stated above, we reverse the trial court’s order dismissing the Association’s claims for injunctive and declaratory relief, unjust enrichment, and breach of contract with prejudice. In addition, we reverse the trial court’s order denying the Association leave to amend its Complaint.

Reversed and remanded for further proceedings consistent with this opinion.

      . Because we conclude the trial court’s dismissal of the Condominium Association’s Complaint based on the statute of limitations was reversible error at this stage in the pleadings, we do not address the trial court’s dismissal based on the doctrine of laches. Moreover, nothing in this opinion should be construed to foreclose the Appellees/Defen-dants from asserting any legal or equitable defenses against the Condominium Association’s claims if any of those claims accrued within the limitations period.

      . For ease of reference, the following table identifies the named defendants and their roles.

      . Count VII remains pending in the trial court. Because Counts I-VI are not legally or factually related to Count VII, the Court may review the trial court's order dismissing Counts I through VI. See Harrison v. J.P.A. Enters., LLC, 51 So.3d 1217, 1219 (Fla. 1st DCA 2011) (explaining that a “partial dismissal of a complaint is only reviewable when it is established that the dismissed claims are not legally and factually interrelated with the remaining claims” (quoting Lambou v. Wakulla Cnty., 919 So.2d 678, 678-79 (Fla. 1st DCA 2006)), and authorities cited therein). "The test to determine whether counts of a multi-count complaint are interrelated, so as to preclude a piecemeal appeal, is whether the counts arise from a set of common facts or a single transaction ...Harrison, 51 So.3d at 1219-20 (quoting Mass. Life Ins. Co. v. Crapo, 918 So.2d 393, 394 (Fla. 1st DCA 2006)).

      . The Final Judgment incorporated and ratified a settlement agreement in which the owners of Fair Isle agreed to certain restrictive covenants pertaining to the development of Fair Isle (the "Settlement Agreement”). A copy of the Final Judgment was attached to the Complaint.

      . The Condominium Association's Complaint and briefs refer to Section 3.5, which does not exist in the Declaration. At oral argument, counsel for the Condominium Association confirmed that references to Section 3.5 in the Complaint and briefs filed in this Court should be references to Section 5.1 of the Declaration.

      . A copy of the Declaration was attached to the Complaint.

      . Fair Isle was developed by Sun Bank of Miami. The Hotel and Club Owner, the Marina Owner, and Cl I Spa, LLC, the owner of a fifty percent interest in the Spa Owner, are subsidiaries of Sun Bank’s successor in interest.

      . By law, a condominium association has the power to make and collect assessments; lease, maintain, repair and replace the common elementó or association property; acquire title to property or otherwise hold, convey, lease, and mortgage association property for the use and benefit of its members in the manner specified in the declaration or, if the declaration is silent, with the approval of seventy-five percent of the total voting interests; subject to a provision regarding the bylaws, to convey through its board of administration a portion of the common elements to a condemning authority for the purposes of providing utility easements, right-of-way expansion, or other public purposes, whether negotiated or as a result of eminent domain proceedings; purchase any land or recreation lease upon the approval of the voting interests as required by the condominium declaration, or, if the declaration is silent, as required to amend the declaration to permit the acquisition; purchase units in the condominium and to and hold, lease, mortgage, or convey the units, unless prohibited by the declaration, articles of incorporation, or bylaws of the association; unless prohibited by the declaration, to grant, modify, or move any easement that is part of, or crosses, the common elements or association property, without the joinder of any unit owner. § 718.111(4), (7), (9), (10) (2012); see abo 10 Fla. Jur. 2d Condominiums & Coop. Apts. § 122 (2012).

      . "There are essentially two categories of cases in which a condominium association attempts to enforce rules of restrictive uses. The first category is that dealing with the validity of restrictions found in the declaration of condominium itself. The second category of cases involves the validity of rules promulgated by the association’s board of directors or the refusal of the board of directors to allow a particular use when the board is invested with the power to grant or deny a particular use.” Woodside Vill. Condo. Ass’n, 806 So.2d at 457.

      . The Condominium Association’s Complaint was filed on July 10, 2009.

      . We further note that any potential unjust enrichment claim as to Westgroup is limited as the complaint alleges that Westgroup was replaced by Grove Hotel Partners, LLC, in November of 2008 as the lessee of the Hotel, Club and Spa.