text:
    MAGNOLIA FLORIDA TAX CERTIFICATES, LLC, a Florida limited liability company, et al., Appellants/Cross-Appellees, v. FLORIDA DEPARTMENT OF REVENUE, et al., Appellees/Cross-Appellants.
    No. 1D17-2094
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Douglas Manson and William S. Bilenky of Manson Bolves Donaldson Varn, P.A., Tampa, for Appellants/Cross-Appellees.
    John A. Tucker, IV, of Foley & Lardner LLP, Jacksonville; Robert H. Hosay, James A. McKee, and Benjamin J. Grossman of Foley & Lardner LLP, Tallahassee, for Appellee Anne M. Gannon, Palm Beach County Tax Collector.
    Vanessa Thomas of Forman, Hanratty, Thomas & Montgomery, Ocala, for Appellee George Albright, Marion County Tax Collector.
    Andrew J. Meyers, Broward County Attorney; Mark A. Journey, Scott Andron, and Joseph K. Jarone, Assistant County Attorneys, Fort Lauderdale, for Appellee Broward County.
    Douglas C. Spears and Benjamin C. Iseman of Swann Hadley Stump Dietrich & Spears, P.A., Winter Park, for Appellee Scott Randolph as Orange County Tax Collector.
    Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, Miami, for Appellee/Cross-Appellant Marcus Saiz De La Mora, Miami-Dade County Tax Collector.
    Timothy R. Qualls of Young Qualls, P.A., Tallahassee, for remaining Appellee Tax Collectors.
   Per Curiam.

In this appeal and cross-appeal from a summary final judgment, three issues have been raised for our consideration: (1) whether the trial court erred in entering summary judgment against Appellants on count II of their complaint challenging the deposit requirement imposed upon bidders for tax certificates in Broward, Miami-Dade, and Orange Counties; (2) whether the trial court erred in entering summary judgment against Appellants on count III of their complaint challenging the affidavit requirement imposed upon bidders for tax certificates in Broward County; and (3) whether the trial court erred in denying a motion to abate the proceedings until Appellants/Cross-Appellees complied with the registration requirements of the Fictitious Name Act. We affirm as to the third issue without further discussion. We also affirm as to the first and second issues for the reasons that follow.

In challenging the imposition of a separate deposit upon each of their general partnerships bidding for tax certificates, Appellants' initial brief advances the following arguments: (1) the deposit is unreasonable because it exceeds the amount necessary to recoup readvertising costs; (2) the deposit is inefficient because it requires the tax collector's office to reissue refunds of large sums; (3) the deposit is contrary to legislative intent because it discourages open competition and participation in auctions; and (4) the trial court misinterpreted section 197.432(7), Florida Statutes, by failing to consider that a third-party surety is permitted to post a deposit on behalf of bidders that is calculated based upon a percentage of the bidding group's expected purchases. Appellants failed to preserve any of these arguments, which were not raised below. See Aills v. Boemi , 29 So.3d 1105, 1109 (Fla. 2010) (holding that the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal); Sunset Harbour Condo. Ass'n v. Robbins , 914 So.2d 925, 928 (Fla. 2005) (holding that an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved); Adkison v. Morey, 239 So.3d 205 (Fla. 1st DCA 2018) (holding that the argument made on appeal was waived because it was never presented to the trial court). Because we cannot address these arguments for the first time on appeal, we affirm the summary judgment against Appellants on count II of their complaint.

In challenging the pre-bidding documentation required by Broward County insofar as it requires all business entities-as opposed to natural persons-to provide an affidavit concerning certain information about the entity, including its name, the type of entity, its state of origin, and information concerning its employer identification number (EIN), Appellants assert that such a requirement is not authorized by section 197.432, Florida Statutes. However, Broward County is a charter county that has the power to "enact county ordinances not inconsistent with general law." Art. VIII, § 1(g), Fla. Const. A local government enactment is inconsistent with state law if it directly conflicts with a state statute or if the legislature has preempted a particular subject area. Sarasota Alliance for Fair Elections, Inc. v. Browning , 28 So.3d 880, 886 (Fla. 2010). Although section 197.432 provides general procedures for tax certificate sales, it does not specify how tax collectors are to ascertain the identities of bidders or set out what information may be requested of bidders. Accordingly, it cannot be said that the affidavit requirement imposed in Broward County is inconsistent with any provision of section 197.432. Moreover, there is nothing in the language of section 197.432 that expressly or impliedly preempts Broward County from imposing an affidavit requirement to ascertain or verify the identity of bidders at tax certificate sales. Accordingly, the trial court correctly concluded as a matter of law that Broward County had discretion to impose an affidavit requirement on bidders in order to carry out its statutory duty to conduct tax certificate sales.

To the extent Appellants claim that the affidavit requirement is contrary to legislative intent and discriminates against non-natural persons, these claims are without merit. There is nothing in section 197.432 expressing an intent to allow business entities to use hundreds of thousands of "shell" bidders to gain an unfair advantage at tax certificate sales. Moreover, Appellants have failed to demonstrate that the disparate treatment between natural and non-natural persons is improper. A constitutional challenge that does not involve a fundamental right or suspect classification is evaluated under the rational basis test, which merely requires the existence of a conceivably rational basis for the enacting governmental body to believe that the challenged legislation would further a legitimate governmental purpose. WCI Communities, Inc. v. City of Coral Springs , 885 So.2d 912, 914 (Fla. 4th DCA 2004). Here, Broward County's affidavit requirement helps ensure that all bidders are bona fide business organizations created under the laws of some state and not sham entities using names made up for the sole purpose of manipulating the lottery selection process to resolve tie bids. Requiring each bidder to identify itself and attest that it did not obtain its EIN for the purpose of gaining advantage in a tax certificate sale in contravention of Internal Revenue Service directives is rationally related to the county's legitimate interest in ensuring the fairness of tax certificate sales. Accordingly, we affirm the summary judgment entered against Appellants on count III of their complaint.

AFFIRMED .

Lewis, Roberts, and Jay, JJ., concur.


source: Caselaw Access Project

author: B.L. Thomas, C.J.

license: Public Domain

text:
    Theophilus BESSELLIEU, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4699
    District Court of Appeal of Florida, First District.
    September 14, 2018
    Theophilus Bessellieu, Appellant, pro se.
    Pamela Jo Bondi, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was tried and convicted of attempted murder of a law enforcement officer and aggravated assault of another law enforcement officer. Appellant and three friends were sitting in a parked car, with Appellant in the front passenger seat, when the police officer approached the driver for identification. The officer testified that Appellant pointed the gun directly in his face, no more than 18 inches away. It was only due to the officer's extremely fast defensive maneuver that he wasn't actually killed; he quickly ducked and turned away, but not fast enough to avoid the gas propellant from the gun's discharge, temporarily blinding him in one eye. The officer immediately returned fire into the vehicle. Appellant and the driver ran away, and went to the same residence soon after the shooting. The driver turned himself in later that night.

The driver of the car testified that, before the shooting, Appellant said that if the police ever tried to "front him [I] will shoot him in the face." He also testified that he saw Appellant running away with the gun. One passenger identified Appellant as the shooter. The other passenger testified that, immediately after seeing a gun fire from within the car, he saw Appellant run away from the car with a gun in his hand.

Appellant was also convicted of aggravated assault of another law enforcement officer, based on Appellant pointing a gun at the pursuing officer. That officer testified that he arrived at the scene to see the officer who was the victim of the attempted murder, and another officer, with their guns drawn and pointed at an "SUV type vehicle." His attention was later drawn to a person who was not wearing a shirt, was breathing heavily, sweating profusely, and had blood on his face. This officer identified the person as Appellant.

After two commands to stop and show his hands, Appellant turned and ran, and the officer chased him. Appellant suddenly turned around and pointed what appeared to be a black firearm at the officer, who then fired at Appellant. The officer was in fear for his life. He "got a good look" at Appellant, because he was only ten feet from him when he saw him.

Officer Charles Wilkie testified that he was dispatched to the 4800 block of Dundee Avenue to assist in securing the perimeter of the incident. When he was about 20 yards away, he saw someone crossing the intersection. This person had no shirt on, which was strange, because it was cold outside. This person also appeared to be holding something in his hands or possibly holding his pants. Officer Wilkie lit up the area with his spotlight, and he then saw the other officer chasing the person he had spotted. That officer fired at the person he was pursuing. After the firing stopped, Officer Wilkie tracked Appellant with his police service dog. The dog led Officer Wilkie to a driveway, where he saw a Ford Bronco, with a pair of shoes and legs visible from underneath it. Officer Wilkie gave the dog a silent command "to engage," and the dog "proceeded underneath the Bronco and engaged the suspect." Shortly thereafter, Appellant emerged.

A crime scene detective from the Jacksonville Sheriff's Office testified that he found three .45-caliber shell casings in the SUV: one on the driver's-side floorboard; another in the center console area; and another on the front passenger-side floorboard. He testified that he also found a live round outside the SUV on the driver's side and explained that a live round could be ejected if there was malfunction or if the slide on the gun was pulled. He further testified that a .45-caliber round was not standard issue from the Jacksonville Sheriff's Office. A firearm analyst testified that, in his expert opinion, the shell casings found at the first scene were fired from the gun that was recovered.

The defense called a firearm and tool-mark examiner for the Florida Department of Law Enforcement, who testified that the State did not find any gunshot residue on Appellant's hands and that .45-caliber ammunition would contain the necessary elements for gunshot residue analysis. But on cross-examination, he testified that a person could remove gunshot residue by common activity, such as rubbing one's hands together or on clothing or by "sweating profusely."

Appellant was found guilty of attempted murder and aggravated assault of a law enforcement officer. He was sentenced to life imprisonment for attempted murder and 15 years' imprisonment for aggravated assault.

In his direct appeal, Appellant argued that the trial court reversibly erred in failing to grant a mistrial when the prosecutor asserted in closing argument that Appellant stated he would shoot any police officer before going "back" to jail. During the trial, the State had agreed to redact the word "back," and the evidence did not include this version of Appellant's statement against interest. This Court affirmed Appellant's direct appeal without opinion. Bessellieu v. State , 37 So.3d 850 (Fla. 1st DCA 2010) (table).

Appellant then filed a petition for habeas corpus, asserting fundamental error occurred in the jury instructions regarding a lesser-included offense and that appellate counsel provided ineffective assistance in failing to raise this argument. This court denied the petition on the merits without opinion. Bessellieu v. State , 57 So.3d 873 (Fla. 1st DCA 2011).

Appellant then filed a motion for postconviction relief raising four grounds. The trial court denied all claims without an evidentiary hearing. This Court affirmed the lower court's order denying relief on three of those claims, but reversed and remanded for the trial court to attach records to conclusively refute Appellant's claim that the State failed to sign the criminal information, and that defense counsel was ineffective for failing to object to this purported error. Bessellieu v. State, 219 So.3d 994 (Fla. 1st DCA 2017). After remand, the circuit court attached several informations filed in Appellant's case.

We hold that Appellant abused the judicial process by challenging the allegedly defective information through a claim of ineffective assistance of counsel. See Arbelaez v. State , 775 So.2d 909, 915 (Fla. 2000) ("Arbelaez may not relitigate procedurally barred claims by couching them in terms of ineffective assistance of counsel."). Had defense counsel objected to the criminal information being filed without the State's signature, the State could have merely signed the information; thus, there is no possibility Appellant was prejudiced. See Strickland v. Washington , 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that to show ineffective assistance of counsel, a defendant must demonstrate a reasonable probability that the outcome would have been different had counsel not acted deficiently). Further, such challenges to a defective information must be raised on direct appeal, not in a rule 3.850 motion. See Williams v. State , 642 So.2d 67 (Fla. 1st DCA 1994) ; cf. Logan v. State , 1 So.3d 1253, 1255 (Fla. 4th DCA 2009) (holding that a prosecutor's alleged failure to obtain sworn testimony from witness cannot be raised in motion for postconviction relief).

Appellant did not raise this deficiency before his trial; thus, any error which may have occurred when the State failed to sign the information was waived. See Hamilton v. State , 106 So.3d 996 (Fla. 1st DCA 2013) ("[A] defect in an information is waived if no objection is timely made so long as the information does not wholly fail to state a crime."); Colson v. State , 717 So.2d 554, 555 (Fla. 4th DCA 1998).

We affirm the trial court's order denying all relief.

AFFIRMED .

Lewis and Makar, JJ., concur.


author: Per Curiam.

text:
    Denise WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2782
    District Court of Appeal of Florida, First District.
    September 20, 2018
    Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

This petition for writ of habeas corpus challenges a trial court order that denied a motion to set bond and directed Petitioner be held pending trial. We deny the petition.

Petitioner is charged with first-degree murder, a capital offense, and conspiracy to commit first-degree murder and accessory after the fact to first-degree murder, offenses which are punishable by life imprisonment. See § 782.04(1), Fla. Stat. Article I, section 14, of the Florida Constitution states:

Pretrial release and detention.-
Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

This provision has been construed to mean that a person charged with a capital offense or an offense punishable by life imprisonment is "entitled to release on reasonable bail as a matter of right" unless "the proof is evident or the presumption great that [the accused] is guilty of the offense charged." State v. Arthur , 390 So.2d 717, 718 (Fla. 1980). We find that the State has met its burden of proof under Arthur .

The charges against Petitioner arose from the presumed drowning death of her husband Mike Williams, who disappeared during a hunting trip on December 16, 2000. Petitioner and Williams were friends with Brian Winchester and his wife. In 2003, Winchester and his wife were divorced. In 2005, Petitioner married Winchester. Petitioner and Winchester separated in 2012, and Petitioner filed for divorce in 2015. Approximately one year after Petitioner filed for divorce, Winchester kidnapped Petitioner at gunpoint. As a result, Winchester was charged with aggravated assault with a firearm, false imprisonment, and battery. Winchester faced a potential life sentence for the crimes he committed against Petitioner.

Winchester entered into a proffer agreement whereby the State (1) agreed to not request a life sentence for his pending charges involving the crimes he committed against Petitioner, (2) agreed to not pursue a witness tampering charge, and (3) offered complete immunity for any admissions that Winchester would make regarding Williams' disappearance. Winchester told law enforcement officials that he was responsible for killing Williams and Petitioner conspired in the murder. Winchester led law enforcement officials to a remote location where Williams' remains were found. Winchester was ultimately sentenced to twenty years in prison for the charges involving the crimes against Petitioner.

After her arrest, Petitioner filed a motion to set bond. The trial court held an evidentiary hearing pursuant to Arthur. The trial court heard evidence from Winchester that he and Petitioner began an affair in October 1997. Petitioner made it clear that she would never divorce Williams because she was concerned about how it would appear to others. In 2000, Petitioner became worried that Williams would discover the affair and seek a divorce. At some point, Petitioner and Winchester started discussing the death of their spouses. Winchester refused to consider anything happening to his first wife for the sake of their child. Petitioner said it would be nice to be with Winchester, but it would be even better if they had money. Williams had three insurance policies: a policy taken out in February 1995 for $250,000 issued by Kansas City Life Insurance Company; a policy taken out in March 2000 for $500,000 issued by Cotton States Insurance Company; and a policy taken out in April 2000, nine months prior to his death, for $1 million issued by Kansas City Life.

Winchester stated Petitioner was aware that Williams was planning to drop the $500,000 insurance policy within a few months after obtaining the $1 million policy. The potential lapse of the $500,000 insurance policy was an important factor in the timing of Williams' death. Winchester stated that he and Petitioner discussed a scenario where Winchester and Williams would go hunting and Williams would have an "accident." Petitioner and Winchester made plans so that they would have alibis for the time of Williams' disappearance. Winchester ended up shooting Williams and hiding his body. Petitioner was not aware that Williams had been shot, but she did know that the plan that day was for him never to return home.

At the Arthur hearing, the State submitted sworn statements from Williams' mother and brother that indicated in 2001, the mother had a picture of Williams included in a newspaper article about missing people. Petitioner was "livid" that Williams' photograph and information were included in the article. Petitioner confronted Williams' mother and threatened to prevent her from seeing her granddaughter if she continued to pursue a criminal investigation. In 2005, after a criminal investigation was started, Petitioner and Winchester confronted Williams' mother again. Petitioner told her that if she stopped the investigation, she would be able to see her granddaughter again. The investigation continued, and after January 8, 2005, Petitioner did not allow Williams' mother or brother to see the granddaughter.

The State also submitted a 2005 law enforcement investigative summary. That report stated that Petitioner held a memorial service for Williams on February 11, 2001, approximately seven weeks after he went missing. On June 21, 2001, a local fisherman found a pair of waders in the area where the search for Williams had taken place. On June 23, 2001, a local diver found a yellow flashlight and a camouflage jacket. Williams' mother identified the flashlight as a gift she had given Williams around Thanksgiving 2000. His Arkansas hunting license was found in a pocket of the jacket.

Petitioner filed a death claim with Kansas City Life on January 4, 2001, only three weeks after Williams' disappearance. On that form, Petitioner failed to disclose the existence of the $1 million policy issued by Kansas City Life. On June 29, 2001, Petitioner filed a sworn petition for a presumptive death certificate which stated that Kansas City Life was the only other party with an interest in the petition. This was a false statement because Williams also had the $500,000 policy with Cotton States. The order declaring Williams presumptively dead was signed the same day the petition was filed. Petitioner did not file a death claim with Cotton States until September 19, 2001. Petitioner received a total of $1,484,453 from the life insurance policies.

Petitioner makes two arguments. First, she asserts that because Winchester was a co-conspirator, his statement cannot meet the heightened burden of Arthur as a matter of law. We reject that argument and hold that a co-conspirator's statement can meet the required evidentiary standard of "the proof of guilt is evident or the presumption is great." Winchester's sworn statement was internally consistent and there was no evidence presented to contradict his factual allegations. Cf. Kirkland v. Forture , 661 So.2d 395 (Fla. 1st DCA 1995) (holding that a defendant was entitled to pretrial release because the only evidence of the defendant's involvement in the murder was three unsworn statements: two internally inconsistent statements made by the person thought to have actually committed the murder and one from the alleged murderer's wife).

Next, Petitioner asserts that there is no physical evidence linking her to the crime as in State v. Perry , 605 So.2d 94 (Fla. 3d DCA 1992), and that the State's case was based almost entirely on the testimony of an alleged accomplice. In Perry , there was impeachment evidence that contradicted the alleged accomplice's testimony. Here, in addition to Winchester's statement, which was internally consistent and uncontradicted, there was additional circumstantial evidence of guilt established by the sworn statements made by Williams' mother and brother, and the evidence concerning the life insurance policies. Petitioner threatened Williams' mother for seeking an investigation into her son's death. When the investigation continued, Petitioner followed through with the threat to deny Williams' mother visitation with the granddaughter. In addition, Petitioner failed to disclose the $500,000 Cotton States policy on the sworn petition for presumptive death certificate or the $1 million policy issued by Kansas City Life on the claim form filed with Cotton States.

The trial judge heard and evaluated the evidence presented. When reviewing the sufficiency of evidence presented to a trier of fact, our undertaking is not to reweigh the evidence. See Hernandez v. State , 56 So.3d 752, 758 (Fla. 2010) ("When reviewing the sufficiency of evidence presented to a trier of fact, our task is not to ... reweigh the evidence."). We find no error in the trial court's ruling.

PETITION DENIED .

Wolf, Rowe, and Jay, JJ., concur.


text:
    Lawrence BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2581
    District Court of Appeal of Florida, First District.
    October 16, 2018
    Lawrence Baker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Roberts, Makar, and Bilbrey, JJ., concur.


text:
    Jerry MCAFFEE, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Secretary/Julie L. Jones, Florida Commission on Offender Review, Respondents.
    No. 1D17-4490
    District Court of Appeal of Florida, First District.
    October 16, 2018
    Jerry McAffee, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondents.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Rowe, Osterhaus, and Kelsey, JJ., concur.


author: Lewis, J.

text:
    D.R. HORTON, INC. - JACKSONVILLE, Appellant, v. HERON'S LANDING CONDOMINIUM ASSOCIATION OF JACKSONVILLE, INC., Appellee.
    No. 1D17-1941
    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied February 14, 2019
    Kimberly A. Ashby of Foley & Lardner LLP, Orlando; Ian P. Gillan and Justin M. Leise of Koeller, Nebeker, Carlson & Haluck, LLP, Orlando, for Appellant.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; Barry B. Ansbacher of Ansbacher Law, Jacksonville, for Appellee.
   Lewis, J.

Appellant, D.R. Horton, Inc. - Jacksonville, appeals a final judgment entered in favor of Appellee, Heron's Landing Condominium Association of Jacksonville, Inc., and raises six issues, only two of which merit discussion. Appellant contends that the trial court erroneously admitted extrapolation evidence and erred in failing to grant its motion for a directed verdict because Appellee sustained no actual damages as a result of alleged building code violations, failed to present evidence that Appellant knew or should have known of building code violations, and failed to establish a breach of the implied warranty of habitability. For the following reasons, we reject Appellant's arguments and affirm.

FACTUAL AND PROCEDURAL HISTORY

In June 2013, Appellee filed a Complaint against Appellant, the developer and general contractor of Heron's Landing, the condominium project at issue. The project consisted of 240 residential units in twenty buildings. In its Amended Complaint, Appellee alleged that Appellant violated the Florida Building Code, breached warranties, and was negligent in its construction of the project.

Thereafter, Appellant filed a motion in limine wherein it sought to preclude the testimony of Appellee's experts W. Ron Woods and Bryan Busse related to defect allegations or repair recommendations on the grounds that the testimony was inherently unreliable and based on improper extrapolation. Appellant filed a second motion in limine relating to testimony presented by Woods and Busse wherein it requested that the trial court preclude both witnesses from testifying as to "opinions, observations, conclusions, damages, or otherwise related to alleged defects related to windows and sliding glass doors, stucco, or asphalt on the grounds that such opinions are without proper foundation, based upon extrapolation, and on the grounds that the testimony does not pass the threshold for admissibility required by Florida Statute Section 90.702."

During the hearing on the motions in limine, Mr. Woods testified that he had been involved in engineering consulting for almost forty years and had done "hundreds of building condition assessments and building condition surveys over the years." Woods, who was a member of certain committees in ASTM, the American Society for Testing and Materials, testified that ASTM E2018 is the standard for a property condition assessment and is used as a guideline "for the phase one of our forensic investigations or of the initial part of our forensic investigation because this is a nonintrusive, nondestructive approach to making observations on a building." All the ASTM standards were peer reviewed by professional engineers, architects, and building design professionals. According to Woods, who was the "principal author" of a textbook used in fifty colleges and universities across the United States and Canada, the standards published by ASTM represented a consensus of the relevant scientific community. After testifying in detail about the problems he found at Heron's Landing, Woods was asked whether it was just his opinion that one should employ a qualitative sampling method, as opposed to a quantitative sampling method, or whether there had been any peer-reviewed publications to support his position. He replied, "Well, E2128 is a peer-reviewed publication. There is a peer-reviewed ASTM journal article that has to do with using these protocols for qualitative assessment." Woods testified that he had Tom Miller, a professional engineer, peer review his report.

When later asked by the trial court what he was recommending with respect to all of the windows at the project, Woods replied, "In our remediation plan, all of the windows would be removed and the contractor's option, they can reuse those same windows provided they remediate them back to the manufacturer's requirements and they can put them back." The primary reason for removing the windows was to "flash properly around the windows." When asked by the trial court whether he was saying that all 220,000 square feet of stucco needed to be replaced based upon "200 something feet of testing," Woods replied, "That is accurate...." When asked what criteria, other than testing, led him to that conclusion, Woods replied, "A lot of visual observation, a lot of indications of problematic conditions with the stucco that we have seen many times on other projects that have led to a need to remove those and the unpredictability of where water actually comes in." Mr. Busse similarly testified about the defects he found at the project and his method of testing and observation.

After hearing the parties' arguments, the trial court, in analyzing the issue pursuant to section 90.702, Florida Statutes (2013), and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), found that the methodology used by Appellee's experts was scientifically reliable, had been peer-reviewed, had been developed by people in the industry, and was generally accepted in the scientific community. The trial court also referenced a Haughton and Murphy article stating that the "protocol" used by the experts had been "peer reviewed extensively and developed by people in ... this area ...." In its written order, the trial court again found that both experts' testimony and opinions were based upon a recognized, peer-reviewed, and generally accepted methodology. The trial court also found that the "literature" rejected Appellant's argument that quantitative or statistically valid sampling was necessary to appropriately analyze the cause of moisture intrusion into a building envelope, what might prevent it, and the potential for moisture-related damage.

During trial, Appellee called several condominium unit owners, who testified about various issues they had experienced with their units, including, but not limited to, wet carpets and drywall, mold, wall cracking, roof leaks, and increasing noise coming through the walls from nearby units. Mr. Woods provided testimony similar to that provided during the hearing on Appellant's motions in limine, as well as additional testimony concerning the issues he found at the project. He also testified that the "defects in the buildings were the result of construction activities, and those construction activities happened when the construction happened." Woods found the biggest issue to be the "stucco walls." He explained in detail how the stucco at issue did not meet the pertinent standards and the Florida Building Code. Woods opined that the issues he found would have been observable during construction. He testified that Appellant had one superintendent "on the job" throughout the course of construction. When asked why that was relevant, he replied, "Because he would have had the opportunity to correct these defects as they were observed, and he is the one who controls the job site and controls the activities of construction on the job site." Woods affirmatively responded when asked if he found things at the project indicating that changes were made during construction that were not in compliance with the plans drawn by the architect. He testified that homeowners could not deal with "voids" relating to the stucco. When asked what was required to fix the stucco, Woods replied, "Again, removal of the stucco and appropriate placement of the sealant profile in those areas." When asked if there was a way to stop stucco corrosion, Woods replied, "It gets faster with more moisture.... But there is no way to stop it once it has started without replacing it." After Mr. Busse testified about the issues he found at the project, Richard Haines, the CEO of RLH Construction, Inc., testified that his "all in" bid to correct the issues at the project was $9,157,690.

Arthur Newcomb, Appellant's construction supervisor for the project, testified that he was given 210 days to complete each building. He affirmatively responded when asked if he "beat that time." When asked if his average for each building was 135 days, he replied, "Well, some were in the lower, some were less, yes."

After Appellee rested its case, Appellant's counsel moved for a directed verdict in part on the grounds at issue in this appeal. The trial court denied the motion.

During Appellant's case, Mr. Newcomb again testified. When asked on cross-examination whether he paid attention to how various aspects of the construction were being done, he replied, "Not every minute, but when I was - if I was walking behind a building, I would try to observe everything I could." When asked whether he could really put his eyes on every building, he replied, "It would be impossible to be everywhere at one time." He testified that the way in which a photograph showed styrofoam being used on the "lath" of a wall was "not the way it's supposed to be done." When asked about photographs showing some unit roofs, Newcomb testified, "It should not be holding water there." When shown photographs of the stucco at issue, Newcomb testified, "I agree, it doesn't look well, but it doesn't necessarily mean the water is going to get to the actual structure of the building." When asked if he would have had voids in the stucco redone, Newcomb replied, "Yes." He testified, "If I would have seen that, I would have definitely made that correction there." When asked if he ever complained to Appellant that he was being handicapped, Newcomb replied, "I requested more information about certain things, yes." When asked if that was not well-received, he replied, "Depending on the circumstance." He later testified, "Not everything that I needed, that I felt like I needed, to do the job. They gave me what they felt like I needed to get the job done."

The jury found that Appellant was negligent and that its negligence was the legal cause of Appellee's loss or damage. As for the building code violation claim, the jury found that Appellee was damaged by "any violation" of the code and that Appellant knew or should have known that the violations existed. With regard to the breach of statutory warranty claim, the jury found that Appellant breached the implied warranty of fitness and merchantability, which was the legal cause of loss or damage to Appellee. The jury found that the total amount of damages sustained by Appellee was $9,600,000. The jury checked "yes" when asked if "any portion of the total amount awarded [was] due to installation of the stucco."

Appellant subsequently filed a motion for new trial or, in the alternative, motion for remittitur. In denying the motion in part, the trial court found that Appellee presented evidence of excessive stucco cracking. The trial court granted Appellant's motion to set aside the verdict as to the negligence claim based on the economic loss rule. It subsequently entered a final judgment in Appellee's favor. This appeal followed.

ANALYSIS

Appellant first contends that it is entitled to have the verdict set aside or have the case remanded for a new trial because the trial court erroneously admitted extrapolation evidence from Mr. Woods and Mr. Busse. The trial court assessed this evidentiary issue below pursuant to section 90.702, Florida Statutes. In amending the statute in 2013, the Legislature sought to adopt the evidentiary standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and cease the application of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923). While this appeal was pending, the Florida Supreme Court issued DeLisle v. Crane Co. , No. SC16-2182, 258 So.3d 1219, 1221-22, 2018 WL 5075302, at *1 (Fla. Oct. 15, 2018). There, the supreme court recognized that while both Frye and Daubert purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury, Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. Id. at 1229-30, 2018 WL 5075302 at *8. In finding the Legislature's adoption of the Daubert test unconstitutional, the supreme court reaffirmed that Frye is the appropriate test in Florida courts. Id. It noted its prior recognition that Frye is inapplicable to the vast majority of cases because it applies only when experts render an opinion that is based upon new or novel scientific principles. Id. Notwithstanding that the trial court and the Fourth District analyzed the admission of expert testimony in the case under section 90.702 and Daubert , the supreme court held that because medical causation testimony was not new or novel and was not subject to a Frye analysis, the testimony at issue was properly admitted by the trial court and should not have been excluded by the Fourth District. Id.

Given the supreme court's DeLisle opinion, we directed each party to file a response addressing how the opinion affected our consideration of Appellant's first issue on appeal. Appellee claims that Appellant's arguments as to this issue are now moot "because under a ' Frye analysis' no judicial review of [its] expert testimony was even necessary, since the uncontroverted evidence was that the opinion testimony by [its] expert engineers was based on established peer-reviewed scientific standards and was not 'new or novel.' " Appellee also contends that there is "no reason or need for any remand or reconsideration of the sufficiency of the expert testimony under a Frye analysis." In contrast, Appellant argues that applying the Frye standard to Appellee's expert opinions requires reversal because the experts offered opinions that were based on new and novel scientific principles or discovery.

The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate. Bundy v. State , 471 So.2d 9, 13 (Fla. 1985). Stated differently, under Frye , the proponent of the evidence has the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology. Marsh v. Valyou , 977 So.2d 543, 547 (Fla. 2007). However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques. Id.

We accept Appellee's argument that no Frye analysis is necessary in this case. In reaching our decision, we find it important that the trial court, albeit in the context of its Daubert analysis, found that Appellee's experts used a scientifically reliable and peer-reviewed methodology that was the industry standard. That finding was supported not only by Appellee's expert testimony but also by the affidavit of Tom Miller, a professional engineer who was asked to review the methodology employed by the experts. Miller explained in detail the methods and techniques that should be employed in the forensic investigation of wood frame stucco clad buildings by competent professional engineers. He also listed the techniques that are applied by the community of professional engineers in Florida in evaluating buildings similar to Heron's Landing. Miller stated, "Based on my review of the documents described above, [Appellee's experts] used the above methodologies in [their] forensic investigation of Heron's Landing in order to reach the opinions ...." He opined that the techniques used by Woods were techniques that are generally accepted in the community of Florida and national professional engineers when investigating building conditions at projects similar to Heron's Landing and were consistent with the intent of the peer-reviewed techniques published by the ASTM. He also opined that the methodology used was sufficiently reliable and had widespread acceptance within the relevant scientific community. As such, Appellant's argument that Appellee's experts' opinions were based upon new or novel scientific methods or techniques and that a Frye analysis is necessary is without merit. Appellant has shown no error on the trial court's part in admitting the evidence at issue.

In its second issue, Appellant argues that the trial court erred in failing to grant its motion for a directed verdict. An order on a motion for directed verdict is reviewed de novo. Kopel v. Kopel , 229 So.3d 812, 819 (Fla. 2017). The denial of such a motion must be affirmed "if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party." Id. All evidence and inferences of fact must be viewed in the light most favorable to the nonmoving party. Id. ; see also Coba v. Tricam Indus., Inc. , 164 So.3d 637, 646 (Fla. 2015) (noting that a motion for directed verdict should be granted only if no view of the evidence could support a verdict for the nonmoving party and the trial court determines that no reasonable jury could render a verdict for the party).

Appellant claims that no actual damages were sustained by Appellee as a result of building code violations. Section 553.84, Florida Statutes (2013), provides:

Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.

As Appellant points out, none of the cases that have cited this statute, which was enacted in 1974, have held that a claim under the statute can succeed without proving actual damages. The Fifth District has described section 553.84 as providing a "cause of action where a defendant has injured a plaintiff by violating the building code or doing construction without the required permit." Stallings v. Kennedy Elec., Inc ., 710 So.2d 195, 195 (Fla. 5th DCA 1998). The Second District has described section 553.84 as "a remedial statute because it provides relief for a person whose home has been built in violation of the building code ...." Anderson v. Taylofr Morrison of Fla., Inc. , 223 So.3d 1088, 1089 (Fla. 2d DCA 2017).

Other cases, while not addressing the specific issue raised in this appeal, show that homeowners have brought claims under the statute for defects similar to the ones alleged in this case. For instance, in Edward J. Seibert, A.I.A, Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass'n , 573 So.2d 889, 890 (Fla. 2d DCA 1990), the appellants challenged a final judgment entered against them and in favor of the appellee. The Second District explained that the appellee was a condominium development; the appellant was the architect. Id. In its lawsuit against the appellant and others, the appellee claimed that the appellant was responsible for damages because of defective roofing design and construction, defective fire exit design, defective stucco design and construction, and defective ceiling slab design. Id. at 890-91. In Anderson , the issue was the interpretation of an arbitration provision. 223 So.3d at 1089. However, it was noted that the appellants, who entered into a sales agreement with the appellee builder to purchase a home, filed a complaint against the appellee alleging in part a violation of the Florida Building Code by inadequately and improperly installing the stucco system on their home. Id. They claimed the code violations were latent and not readily observable or known to them until damages began to manifest themselves in the form of cracking to the exterior stucco years after construction ended. Id. The Second District reversed the order compelling arbitration and remanded the matter to the trial court for further proceedings "on the ... complaint." Id.

In support of its argument, Appellant relies in part upon Eagle-Picher Industries, Inc. v. Cox , 481 So.2d 517 (Fla. 3d DCA 1985). There, the Third District, in addressing cancer-related asbestosis, held that damages were not recoverable for the future risk of cancer. Id. at 526. This case presents a different issue than someone's exposure to a dangerous substance and possible future illness as a result. Here, numerous homeowners testified to issues they were having in their homes. Moreover, Appellee presented expert testimony regarding defects in the units - defects that, according to the experts, needed to be remedied to avoid additional loss and damage. Appellant's own project supervisor acknowledged several defects and testified that had he seen or known about them, he would have had them remedied prior to the completion of the project. Therefore, we reject Appellant's argument that Appellee failed to present evidence of actual damages.

Within its second issue, Appellant also asserts that Appellee did not present evidence that it knew or should have known of building code violations under section 553.84. We reject this argument as well. As stated, Appellant's project supervisor acknowledged at trial that various problems existed at Heron's Landing. When asked if he ever complained to Appellant that he was being handicapped, he replied, "I requested more information about certain things, yes." He also testified, "Not everything that I needed, that I felt like I needed, to do the job. They gave me what they felt like I needed to get the job done." Thus, the jury was presented with evidence that Appellant either knew or should have known about the issues at Heron's Landing.

Appellant also asserts that Appellee did not establish a breach of the implied warranty of habitability. As Appellant notes, section 718.203(1), Florida Statutes (2013), provides that a "developer shall be deemed to have granted to the purchaser of each [condominium] unit an implied warranty of fitness and merchantability for the purposes or uses intended." "The contractor and all subcontractors and suppliers, grant to the developer and to the purchaser of each unit implied warranties of fitness as to the work performed or materials supplied by them." § 718.203(2), Fla. Stat. (2013). As the supreme court has explained, "The general test for whether a party has breached the implied warranties of fitness and merchantability [for a new home] 'is whether the premises meet ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality.' " Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners Ass'n , 127 So.3d 1258, 1268 (Fla. 2013) (citation omitted). In other words, a warranty is breached "if the residence is rendered not reasonably fit for the ordinary or general purpose intended." Id. ; see also Schmeck v. Sea Oats Condo. Ass'n , 441 So.2d 1092, 1097 (Fla. 5th DCA 1983) ("It is now well established that a developer may be held liable for damages for breach of implied warranties in failure to construct according to plans or in a workmanlike or acceptable manner, or for failure to provide a unit or building which is reasonably habitable.").

According to Appellant, because none of the unit owners or the experts testified that there was an inability to inhabit the units, the use for which they were intended, the trial court should have granted a directed verdict as to the implied warranty claim. Thus, Appellant takes the position that in order to breach the implied warranty set forth in section 718.203, a condominium unit must be uninhabitable. However, nothing Appellant cites supports this position. As we stated, numerous homeowners testified about various problems they were experiencing with their condominium units. Although the defects did not force the homeowners to abandon their homes, the testimony certainly supported the jury's determination that the units did not meet the ordinary, normal standards that were reasonably to be expected of living quarters of comparable kind and quality. Thus, the trial court did not err in denying Appellant's motion for directed verdict on this ground.

CONCLUSION

For the reasons expressed herein, we find no error in the trial court's admission of Appellee's expert testimony or in its denial of Appellant's motion for a directed verdict. Accordingly, we affirm the final judgment.

AFFIRMED .

Wetherell and Winokur, JJ., concur.

      Miller explained in detail the methods and techniques that should be employed in the forensic investigation of wood frame stucco clad buildings by competent professional engineers. He also listed several techniques that are applied by the community of professional engineers in Florida to evaluate buildings similar to Heron's Landing. Miller stated, "Based on my review of the documents described above, [Appellee's experts] used the above methodologies in [their] forensic investigation of Heron's Landing in order to reach the opinions expressed in the reports ... or stated in the deposition testimony given by Mr. Woods and Mr. Busse." Miller opined that the techniques used by the experts were techniques that are generally accepted in the community of Florida and national professional engineers when investigating building conditions at projects similar to Heron's Landing and were consistent with the intent of the peer-reviewed techniques published by the ASTM. He further opined that the methodology used was sufficiently reliable and had widespread acceptance within the relevant scientific community.


text:
    Ava Electris CANNIE Eva Electris Cannie Eva Helene Cannie, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3359
    District Court of Appeal of Florida, First District.
    December 7, 2018
    Ava Electris Cannie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Roberts, Ray, and Bilbrey, JJ., concur.


text:
    Shawn Demontre COOLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1573
    District Court of Appeal of Florida, First District.
    October 24, 2018
    Shawn Demontre Cooler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Lewis, Ray, and M.K. Thomas, JJ., concur.


author: Gerber, C.J.

text:
    ARCH INSURANCE COMPANY, Appellant, v. KUBICKI DRAPER, LLP, a Law Firm, Appellee.
    No. 4D17-2889
    District Court of Appeal of Florida, Fourth District.
    January 23, 2019
    Benjamin J. Biard and Brittany P. Borck of Winget Spadafora Schwartzberg, LLP, Miami, and Frank A. Shepherd and Lesley-Anne Marks of GrayRobinson, P.A., Miami, for appellant.
    Christopher J. Lynch and Steven K. Hunter of Hunter & Lynch, Coral Gables, for appellee.
   Gerber, C.J.

The appellant insurer appeals from the circuit court's final judgment granting the appellee law firm's motion for summary judgment, which argued that the insurer lacked standing to sue the law firm. We agree with the circuit court's reasoning that the insurer was not in privity with the law firm, and thus the insurer lacked standing to sue to the law firm. We further conclude that the insurer's suit did not qualify under the privity rule's two exceptions which our supreme court has recognized. Therefore, we affirm.

We present this opinion in three sections:

1. The procedural history;
2. The circuit court's order granting summary judgment; and
3. Our review.

1. Procedural History

The insurer hired the law firm to defend the insured in a separate suit. After the separate suit settled within the insured's policy limits, the insurer sued the law firm for professional negligence, i.e., legal malpractice. The insurer's negligence suit alleged, in pertinent part, that the law firm's delayed filing of the insured's statute of limitations defense resulted in a large settlement, using the insurer's funds, which would have been avoided, in whole or in part, if the law firm had raised the insured's statute of limitations defense earlier in the separate suit.

In response to the insurer's suit, the law firm filed a motion for summary judgment. The law firm's motion alleged, in pertinent part, that the insurer lacked standing to sue the law firm because the insurer and the law firm were not in privity with each other.

In support of its motion, the law firm primarily relied on two cases: Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner , 612 So.2d 1378 (Fla. 1993), and Angel, Cohen & Rogovin v. Oberon Investment, N.V. , 512 So.2d 192 (Fla. 1987). In Espinosa , our supreme court held:

An attorney's liability for negligence in the performance of his or her professional duties is limited to clients with whom the attorney shares privity of contract. In a legal context, the term "privity" is a word of art derived from the common law of contracts and used to describe the relationship of persons who are parties to a contract. To bring a legal malpractice action, the plaintiff must either be in privity with the attorney, wherein one party has a direct obligation to another, or, alternatively, the plaintiff must be an intended third-party beneficiary.

Id. at 1379-80 (internal citations omitted). In Angel , our supreme court held:

Florida courts have uniformly limited attorneys' liability for negligence in the performance of their professional duties to clients with whom they share privity of contract. The only instances in Florida where this rule of privity has been relaxed is where it was the apparent intent of the client to benefit a third party .... Florida courts have refused to expand this exception to include incidental third-party beneficiaries.

512 So.2d at 194 (internal citations omitted).

After relying on Espinosa and Angel , the law firm's motion further alleged, in pertinent part:

No Florida case law recognizes an attorney-client duty owed by defense counsel to an insurance carrier where the attorney is hired to defend an insured with respect to a liability claim filed under the carrier's policy. [Here, u]nder its insuring agreement with [the insurer], subject to [the insurer's] "review and consent," which would "not be unreasonably withheld," [the insured] had the right to appoint its own legal counsel to defend any covered claim ....
Further, nowhere on the face of the relevant documents ... relating to the retention of [the law firm], such as the statement of Clients' Rights, is there any indication that with respect to the [underlying] matter, [the law firm] would be representing [the insurer] in addition to [the insured]. Very simply, for that to have been the case, there would have to have been a disclosure to [the insured] that [the law firm] was undertaking the dual representation of [the insured] and [the insurer]. There is[,] however, no such agreement to that effect ....
[The law firm] was in privity of contract with [the insured] and the [insurer's] role was that of a third party paying [the law firm] to represent [the insured] ....
[T]he undisputed facts show that during the course and scope of [the law firm's] representation of [the insured,] an opportunity arose to resolve the matter against [the insured] and it was [the law firm's] duty to ensure that the matter was resolved within the limits of the policy providing coverage so as to avoid any exposure to [the insured] in excess of those policy limits. As a net result, the insured ... has suffered no damages as a result of any alleged actions or inactions on the part of [the law firm].

2. The Circuit Court's Order Granting Summary Judgment

The circuit court granted the law firm's motion for summary judgment. The circuit court's order reasoned, in pertinent part:

After careful review, the court determines that [the insurer] lacks standing to directly pursue the claims against [the law firm] in the instant action. Attached to the retention letter sent to [the insured] by [the law firm] was a Statement of Client's Rights demonstrating that [the insured] was in privity with [the law firm] as [the law firm's] client ...
[The insurer's] reliance on Hartford Insurance Co. of Midwest v. Koeppel, 629 F.Supp.2d 1293 (M.D. Fla. 2009)(" Koeppel "), Nova Casualty Co. v. Santa Lucia, No. 8:09-cv-1351-T-30AEP, 2010 WL 3942875 (M.D. Fla. Oct. 5, 2010)(" Nova "), and U.S. Specialty Insurance Co. v. Burd, 833 F.Supp.2d 1348 (M.D. Fla. 2011)(" Burd "), does not persuade this Court otherwise. As an initial matter, these cases are not binding on this Court, but rather, only constitute persuasive authority. See Carnival Corp. v. Carlisle, 953 So.2d 461, 465 (Fla. 2007) ("Generally, state courts are not required to follow the decisions of intermediate federal appellate courts [or federal district courts] .... Although state courts are bound by the decisions of the United States Supreme Court ... there is no similar obligation with respect to decisions of the lower federal courts.").
Moreover, in Koeppel, the federal court recognized that there is no controlling Florida precedent, requiring it to "guess" (the federal court's terminology) that "the Florida courts would extend the strict privity exception and recognize an insurer's legal malpractice claim against an attorney retained to represent its insured." Koeppel, 629 F.Supp.2d at 1301 (emphasis added). In Nova, the federal court followed Koeppel's "guess," and noted that it was "forced to predict how the Florida courts would rule if they were presented with the issue." Nova, 2010 WL 3942875, at *2 (emphasis added) (citing Koeppel, 629 F.Supp.2d at 1298 ). Likewise, in Burd, the federal court relied upon Koeppel's "guess" and Nova's "forced prediction" in reaching the conclusion that an insurer may file a legal malpractice claim against the law firm it retains to represent its insured. See Burd, 833 F.Supp.2d at 1352-53 (emphasis added). This court will not adopt new expansive precedent that is based on "guesses" and "forced predictions" when the Florida Supreme Court to date has so severely limited exceptions in this area of the law. Furthermore, the court determines that Koeppel and Burd are distinguishable from the instant action. For instance, in Koeppel and Burd the attorneys were hired to defend a carrier's interest in effecting a settlement under liability policies. In the instant action, [the law firm] was retained to defend the interests of [the insured] against liability claims. Additionally, unlike the instant action, in Koeppel and Burd, the insurance companies settled the underlying claims in excess of the policy limits of the subject insurance policies. As noted above, it is undisputed in the instant action that the [u]nderlying [l]itigation was settled within the policy limits of the insurance policy issued by [the insurer].
The court also determines that Nova is distinguishable from the instant action. In that case, the federal court determined that there was privity between the insurance carrier, Nova, and the law firm, Santa Lucia. As discussed above, however, there is no privity between [the insurer] and [the law firm], and none of the recognized exceptions to the strict privity requirement apply in [the] instant action.

3. Our Review

This appeal followed. Our review is de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000) (standard of appellate review applicable to grant of summary judgment is de novo); Johnson v. State , 78 So.3d 1305, 1314 (Fla. 2012) ("Determining whether a party has standing is a pure question of law to be reviewed de novo.") (citation omitted).

Based on our review of the record, we agree with the circuit court's conclusion that the law firm was in privity with the insured as the client. We see nothing in the record to indicate that the law firm was in privity with the insurer. We also see nothing in the record to indicate that the insurer was an intended third-party beneficiary of the relationship between the law firm and the insured. We further adopt the circuit court's well-reasoned order, distinguishing the federal cases upon which the insurer relies, as our own reasoning.

The insurer nevertheless argues public policy and common sense dictate that an insurer should be able to pursue legal malpractice claims against defense counsel retained to represent its insureds. According to the insurer:

Logic dictates that an insurer can pursue a legal malpractice claim against the law firm it hired for its insured because it retained the law firm to protect the insured's rights, and a law firm is liable for the malpractice it commits. Currently, no Florida appellate court has issued a decision on point addressing an insurer's standing to pursue a claim for legal malpractice against the law firm it hired to defend its insured. However, several Florida federal courts have issued opinions predicting Florida law's recognition of an insurer's right to pursue a malpractice claim against the law firm it retained for its insured if the malpractice increased the insured's exposure and the insurer paid to resolve the claim against the insured [citing Nova , Koeppel , and Burd ].
Precluding an insurer from bringing a malpractice action against the law firm retained for its insured would have dire consequences. Essentially, law firms would be shielded from liability resulting from their malpractice. Both Florida federal courts and courts from other jurisdictions have discussed at length the important policy reasons supporting their decision to allow an insurer to seek redress for ... legal malpractice against the law firm it retained for its insured. See , e.g. , Koeppel , 629 F.Supp.2d at 1300 (denying an insurer's right to pursue its insured's legal malpractice claim serves only the interests of retained defense counsel by providing blanket protection from legal malpractice claims); Am. Centennial Ins. Co. v. Canal Ins. Co. , 843 S.W.2d 480, 485 (Tex. 1992) ("Refusal to permit the excess carrier to vindicate that right would burden the insurer with a loss caused by the attorney's negligence while relieving the attorney from the consequences of legal malpractice."); see also Great. Am. E & S Ins. Co. v. Quintairos, Prieto, Wood & Boyer, P.A. , 100 So.3d 420, 424 (Miss. 2012) (en banc) ("We hold only that, when lawyers breach the duty they owe to their clients, excess insurance carriers, who - on behalf of the clients - pay the damage, may pursue the same claim the client could have pursued. Holding otherwise would place negligent lawyers in a special category of protection.").

We understand the insurer's public policy argument. However, we are bound to follow the law as it exists, not as the insurer argues it ought to be. Our supreme court has recognized only two situations in which a third party was permitted to pursue a legal malpractice claim against counsel who was not in privity with the third party, neither of which applies here: (1) a will drafting situation, see Angel, 512 So.2d at 194 ("The only instances in Florida where this rule of privity has been relaxed is where it was the apparent intent of the client to benefit a third party. The most obvious example of this is the area of will drafting."); and (2) a private placement situation, see Cowan Liebowitz & Latman, P.C. v. Kaplan , 902 So.2d 755, 757 (Fla. 2005) ("[B]ecause lawyers preparing private placement memoranda, like independent auditors, owe a duty to those who rely on statements contained in their published documents, parties may assign claims for legal malpractice committed in preparing them.").

Based on the record before us, where nothing indicates that the law firm was in privity with the insurer, or that the insurer was an intended third-party beneficiary of the relationship between the law firm and the insured, we are unwilling to expand the field of privity exceptions to apply to this case. Thus, we affirm the circuit court's conclusion that the insurer lacked standing to pursue a professional negligence claim against the law firm in the underlying action.

Affirmed.

ON APPELLANT'S MOTION FOR CERTIFICATION TO THE FLORIDA SUPREME COURT

By opinion issued January 23, 2019, we affirmed the circuit court's final judgment granting the appellee law firm's motion for summary judgment against the appellant insurer, on the basis that the appellant insurer lacked standing to sue the law firm. Arch Ins. Co. v. Kubicki Draper, LLP , No. 4D17-2889, 2019 WL 318466 (Fla. 4th DCA Jan. 23, 2019). We agreed with the circuit court's reasoning that the insurer was not in privity with the law firm, and thus the insurer lacked standing to sue the law firm. Id. at *1. We further concluded that the insurer's suit did not qualify under the privity rule's two exceptions which our supreme court has recognized. Id.

The insurer has now filed a motion requesting this court to certify the following two questions as questions of great public importance:

I. Whether an insurer has standing to maintain a malpractice action against counsel hired to represent its insured where the insurance company has a duty to defend.
II. Whether the unique tripartite relationship between the insurer, insured, and law firm is a limited exception to the strict privity rule.

We grant the motion to certify the first proposed certified question. We deny the motion to certify the second proposed certified question, which we consider to be subsumed within the first proposed certified question.

Therefore, we certify to our supreme court the following question of great public importance (slightly restated from the proposed question):

WHETHER AN INSURER HAS STANDING TO MAINTAIN A MALPRACTICE ACTION AGAINST COUNSEL HIRED TO REPRESENT THE INSURED WHERE THE INSURER HAS A DUTY TO DEFEND.

Motion granted in part, denied in part; question of great public importance certified.

Forst and Klingensmith, JJ., concur.

      The Fifth District also recently addressed a professional negligence claim against an attorney who argued in a motion to dismiss that he was not in privity with the plaintiffs. However, our sister court held that the plaintiffs' second amended complaint sufficiently alleged an ongoing attorney-client relationship between the plaintiffs and the attorney, or in the alternative that the plaintiffs were intended third-party beneficiaries of the attorney's services. See E.P. v. Hogreve , 2018 WL 6715555 (Fla. 5th DCA Dec. 21, 2018) (trial court erred in dismissing second amended complaint). Given the different procedural posture between Hogreve (motion to dismiss stage), and this case (summary judgment stage), we consider Hogreve to be distinguishable from our decision in this case.


text:
    James Levoy WATERS, Appellant, v. Mark INCH, Secretary, Florida Department of Corrections, Tallahassee, Florida ; and GEO Group, Inc., Boca Raton, Florida, Appellees.
    No. 1D18-639
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied March 29, 2019
    James Levoy Waters, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Appellee Mark Inch, Secretary, Florida Department of Corrections; Scott J. Seagle of Coppins Monroe, P.A., Tallahassee, for Appellee GEO Group, Inc.
   Per Curiam.

James Levoy Waters (Appellant) appeals the dismissal of his petition for writ of mandamus. For the reasons that follow, we reverse.

In his mandamus petition, Appellant asserted that GEO Group, Inc., the private company that manages the correctional facility where he is housed, and the Secretary of the Florida Department of Corrections ("DOC") (collectively, Appellees) had an indisputable legal duty to follow the rules of chapter 33 of the Florida Administrative Code that govern the impounding, safekeeping, and return of inmates' personal property and the investigation of claims of missing inmate property and that they failed to follow those rules. Specifically, he alleged in part that Appellees failed to list his folder containing eight depositions on the Inmate Impounded Personal Property List when his property was impounded upon his placement in administrative confinement, Appellees failed to return the folder to him upon his release from confinement, and Appellees failed to adequately investigate his claim during the grievance proceedings. Appellant showed he had exhausted his administrative remedies. Following the trial court's issuance of an order to show cause, each Appellee filed a response to the petition, denying that they ever received or had control over the alleged legal documents, and GEO further asserting that a diligent search confirmed that it does not possess the documents.

The trial court entered an Order Dismissing Petition for Writ of Mandamus, reasoning that (1) to the extent Appellant seeks to compel the return of allegedly lost legal documents, mandamus relief is unavailable because he has other adequate remedies available; (2) mandamus is not a proper remedy because a factual dispute exists concerning the inventorying, storing, and returning of Appellant's legal documents; and (3) to the extent Appellant requests monetary reimbursement for his legal documents, he is not entitled to relief because mandamus is not an appropriate vehicle for seeking monetary damages. This appeal followed.

We review the dismissal of a mandamus petition de novo . Waters v. Dep't of Corr. , 144 So.3d 613, 615 (Fla. 1st DCA 2014). "In order to be entitled to a writ of mandamus, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available." Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP , 221 So.3d 1260, 1263 (Fla. 1st DCA 2017).

Appellant challenges in part the trial court's reasons for dismissal, which we will address in turn. The trial court's first stated reason for dismissal was the availability of other adequate remedies. However, mandamus may be used to compel an agency to follow its own rules. Waters , 144 So.3d at 615. Rule 33-602.201(7) governs impounded inmate property and provides in part that when it is necessary to impound an inmate's personal property, "that property shall be taken, handled, processed, and secured in a manner that will safeguard it from loss, damage, destruction, or theft while it is under the control of the department." Fla. Admin. Code R. 33-602.201(7)(a). An inmate's property "will be inventoried according to the following procedure on Form DC6-220, Inmate Impounded Personal Property List, and, whenever practical, in the presence of the inmate." Fla. Admin. Code R. 33-602.201(7)(b). "The inventory shall specifically list and identify each item or each group or package of personal items such as letters, legal papers, etc. as an assortment on Form DC6-220." Fla. Admin. Code R. 33-602.201(7)(b)1.

"Grievances concerning lost personal property shall be processed according to the provisions of [chapter 33] and paragraphs 33-602.201(14)(a) through (e), F.A.C." Fla. Admin. Code R. 33-103.010. "Any request for compensation or replacement of missing items shall be initiated via the inmate grievance process by the inmate whose property is missing." Fla. Admin. Code R. 33-602.201(14)(a). "If the grievance is approved, the assistant warden or other designee of the warden shall conduct an investigation of the loss." Fla. Admin. Code R. 33-602.201(14)(b). "The degree of investigation is determined by the complexity of the issue and the content of the grievance." Fla. Admin. Code R. 33-103.007(6)(e).

Accordingly, we, as well as other courts, have deemed mandamus to be a proper vehicle for seeking the return of inmate property, including legal documents. See Hill v. Crews , 109 So.3d 267, 267-68 (Fla. 1st DCA 2013) (reversing the dismissal of claims regarding a bank book and legal documents in a mandamus petition seeking to compel the DOC to follow its rules governing missing inmate property); see also Brown v. State , 913 So.2d 27, 28 (Fla. 3d DCA 2005) (reversing the denial of the mandamus petition that sought the return of legal documents that were lost or misplaced by the correctional institution and remanding with instruction to have the missing documents returned without cost to the appellant); Tweed v. Sistrunk , 697 So.2d 888, 889 (Fla. 5th DCA 1997) (reversing in part the denial of the mandamus petition seeking the return of improperly withheld property upon disagreeing with the appellee that "Title 33 of the Florida Administrative Code does not afford appellant a right to his property insofar as it is authorized and he has storage space available"). Thus, the trial court's first reason for dismissal was erroneous because mandamus is the proper vehicle for seeking to compel Appellees to follow their rules and return Appellant's legal documents.

The trial court further reasoned that mandamus is not a proper remedy because a factual dispute exists. The trial court specifically determined that "resolution of this case would require testimony and an evidentiary hearing to resolve questions of fact." As we have stated, however, if a mandamus petition and response raise disputed issues, "the trial court must resolve those issues upon evidence submitted by the parties" and the court "errs in denying a petition unless there is sworn evidence refuting the petitioner's allegations." Tracy v. State , 219 So.3d 958, 959 (Fla. 1st DCA 2017) ; see also Williams v. State , 163 So.3d 618, 620 (Fla. 4th DCA 2015) (explaining the same and instructing the trial court on remand that if the response does not resolve the factual dispute, the court should hold an evidentiary hearing). As such, the trial court erred in dismissing the petition after determining that questions of fact remained; instead, it should have held an evidentiary hearing.

The trial court's final reason for dismissal was that to the extent Appellant is seeking monetary reimbursement for his legal documents, mandamus is not an appropriate vehicle for seeking monetary damages. The court cited Newsome v. Singletary , 637 So.2d 9 (Fla. 2d DCA 1994), receded from on other grounds, Stovall v. Cooper , 860 So.2d 5 (Fla. 2d DCA 2003), and Flournoy v. Moore , 752 So.2d 35 (Fla. 1st DCA 2000), in support. Unlike the appellants in those cases, Appellant here did not pray for relief in the form of money damages. Additionally, Flournoy and Newsome involved habeas petitions. As we have explained, mandamus is the proper vehicle for seeking to compel an agency to follow its rules and for seeking the return of inmate property. In fact, rule 33-602.201(7) governs the impounding of inmate property, and rule 33-602.201(14) sets forth the procedures to be followed when an inmate's property cannot be located and specifically provides that "[a]ny request for compensation or replacement of missing items shall be initiated via the inmate grievance process." Thus, the trial court's third reason for dismissal was likewise invalid.

Therefore, we reverse the order dismissing the petition and remand for further proceedings.

REVERSED and REMANDED .

Wolf, Lewis, and Wetherell, JJ., concur.


author: Wolf, J.

text:
    KEYSTONE AIRPARK AUTHORITY, Appellant, v. PIPELINE CONTRACTORS, INC., a Florida Corporation; The Hanover Insurance Company, a New Hampshire Corporation; and Passero Associates, LLC, a Florida Limited Liability Company, Appellees.
    No. 1D17-2897
    District Court of Appeal of Florida, First District.
    January 25, 2019
    James J. Taylor Jr. and Katelyn J. Taylor of Taylor Law Firm, P.A., Keystone Heights, for Appellant.
    Curtis L. Brown and Mark T. Snelson of Wright, Fulford, Moorhead & Brown, P.A., Altamonte Springs, for Passero Associates, LLC, Appellee.
    John E. Oramas of Oramas & Associates, P.A., Miami, Amici Curiae in support of Appellee, Passero Associates, LLC.
   Wolf, J.

On consideration of appellee's motion for clarification and appellant's response, this Court grants the motion, withdraws the opinion filed on November 27, 2018, and substitutes the following opinion in its place.

Keystone Airpark Authority, appellant, challenges a partial final summary judgment entered in favor of Passero Associates, LLC, appellee. The Airpark argues the trial court erred in determining that the damages it sought to repair an airplane hangar and taxiways that deteriorated after Passero allegedly failed to meet its obligations under a construction contract were consequential damages, which were excluded by the parties' contract. We affirm but certify a question of great public importance.

FACTS

The Airpark brought causes of action against Passero, an engineering firm, for breach of contract and negligence. The Airpark entered into an agreement with a contractor to construct airplane hangars and taxiways, and it contracted separately with Passero to provide engineering services that included "part-time resident engineering and inspection, [and] material testing." Specifically, the contract required Passero to "inspect," "observe" and "monitor" the construction work to ensure compliance with the plans and to ascertain the need for correction or rejection of the work, including determining the suitability of materials used by the contractor:

Observe the work to determine conformance to the contract documents and to ascertain the need for correction or rejection of the work.
....
Arrange for, conduct, or witness field, laboratory or shop tests of construction materials as required by the plans and specifications.
Determine the suitability of materials on the site, and brought to the site, to be used in construction.
Interpret the contract plans and specifications and monitor the construction activities to maintain compliance with the intent.
Prepare and submit inspection reports of construction activity and problems encountered ....
....
[M]onitor[ ] periodic construction activities on the project and document[ ] their observations in a formal project record ....

The Airpark alleged that the contractor used substandard material for stabilization underneath the structures, which Passero failed to detect, causing the concrete hangar slabs and asphalt taxiways to prematurely deteriorate. The Airpark sought to recover from Passero the cost to remove, repair, and replace the hangars, taxiways, and underlying subgrade. It sought the same relief from the contractor.

Passero moved for summary judgment, arguing the damages the Airpark sought to recover were not a direct result of Passero's alleged failure to perform under the contract. Instead, Passero argued the need for repair resulted from a combination of Passero's alleged failure to perform construction inspection services under the contract and the contractor preparing the subgrade improperly. Thus, Passero argued the repair costs were not direct or general damages, but instead were consequential damages, which were excluded by a provision in the parties' contract that stated, "Passero shall have no liability for indirect, special, incidental, punitive, or consequential damages of any kind." Passero argued the only direct or general damages that the Airpark could seek to recover against Passero were the costs of the services provided by Passero. The trial court agreed and entered partial final summary judgment in favor of Passero.

ANALYSIS

The Airpark argues the cost of repair to the hangars and taxiways constitutes general damages and not consequential damages because those damages were foreseeable. It relies on an English case from 1854 called Hadley v. Baxendale , 9 Exch. 341, 156 Eng. Rep. 145 (1854), which defined the general measure of damages as those damages "arising naturally ... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract." However, if there were "special circumstances" that were "communicated by the plaintiffs to the defendants, and thus known to both parties," the plaintiff could recover for "injury which would ordinarily follow from a breach of contract under these special circumstances." Id.

Here, the Airpark argues it was foreseeable that Passero's failure to perform under the contract could have resulted in construction defects going undetected, which could later require repair. It reasons these damages arose naturally from the breach of its contract with Passero and did not involve special circumstances about which it would have been required to give Passero actual notice. Thus, the Airpark argues these damages are general and not special or consequential.

Foreseeability is not at issue here. Passero does not dispute it was foreseeable that if it failed to perform its duties under the contract, that could result in the need for repairs. It is thus necessary for us to explore the definition of general, special, and consequential damages and how the question of foreseeability affects the nature of the damages incurred in this case.

"General damages are 'those damages which naturally and necessarily flow or result from the injuries alleged....' " Hardwick Properties, Inc. v. Newbern , 711 So.2d 35, 39 (Fla. 1st DCA 1998) (quoting Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla. 1972) ). General damages " 'may fairly and reasonably be considered as arising in the usual course of events from the breach of contract itself.' " Id. (quoting Fla. E. Coast Ry. v. Beaver St. Fisheries, Inc., 537 So.2d 1065, 1068 (Fla. 1st DCA 1989) ). Stated differently, "[g]eneral damages are commonly defined as those damages which are the direct , natural, logical and necessary consequences of the injury." Fla. Power Corp. v. Zenith Indus. Co. , 377 So.2d 203, 205 (Fla. 2d DCA 1979) (emphasis added).

"In contrast, special damages are not likely to occur in the usual course of events, but 'may reasonably be supposed to have been in contemplation of the parties at the time they made the contract.' " Hardwick , 711 So.2d at 40 (quoting Fla. E. Coast Ry., 537 So.2d at 1068 ). They "consist of items of loss which are peculiar to the party against whom the breach was committed and would not be expected to occur regularly to others in similar circumstances." Id. (citing Johnson v. Monsanto Co., 303 N.W.2d 86 (N.D. 1981) ). "In other words, 'general damages are awarded only if injury were foreseeable to a reasonable man and ... special damages are awarded only if actual notice were given to the carrier of the possibility of injury. Damage is foreseeable by the carrier if it is the proximate and usual consequence of the carrier's action.' " Fla. E. Coast Ry. , 537 So.2d at 1068 (quoting Hector Martinez & Co. v. S. Pac. Transp. Co. , 606 F.2d 106, 109 (5th Cir. 1979) ).

"[C]onsequential damages 'do not arise within the scope of the immediate buyer-seller transaction , but rather stem from losses incurred by the non-breaching party in its dealings, often with third par ties , which were a proximate result of the breach, and which were reasonably foreseeable by the breaching party at the time of contracting.' " Hardwick , 711 So.2d at 40 (emphasis added) (quoting Petroleo Brasileiro, S.A., Petrobras v. Ameropan Oil Corp., 372 F.Supp. 503, 508 (E.D.N.Y. 1974) ). "The consequential nature of loss ... is not based on the damages being unforeseeable by the parties. What makes a loss consequential is that it stems from relationships with third parties, while still reasonably foreseeable at the time of contracting." Bartram, LLC v. Landmark Am. Ins. Co. , 864 F.Supp.2d 1229, 1240 (N.D. Fla. 2012) (emphasis added) (citing Hardwick Properties, Inc. v. Newbern , 711 So.2d at 40 ).

We agree with the Airpark that the damages in this case were not special damages. The contract required Passero to inspect, observe and monitor the construction work, including determining the suitability of materials used by the contractor, and to report any problems. It cannot be said that repairs stemming from improperly inspected and monitored construction work are unlikely to occur in the usual course of business. The damages in this case were not particular to the Airpark and did not involve special circumstances for which the Airpark would have been required to give Passero actual notice. Instead, these types of damages would be expected to occur to other parties in similar circumstances. Thus, they were not special damages.

However, the cost of repair here did not constitute general damages, either, because the damages were not the direct or necessary consequence of Passero's alleged failure to properly inspect, observe, monitor, and report problems with the construction work. The contractor could have completed the job correctly without Passero performing its duties under the contract. Thus, the need for repair did not arise within the scope of the immediate transaction between Passero and the Airpark. Instead, the need for repair stemmed from loss incurred by the Airpark in its dealings with a third party - the contractor. While these damages "were reasonably foreseeable," they are consequential and not general or direct damages.

The parties agree there is no case law directly on point involving damages stemming from the failure to inspect and monitor construction work; however, we find this case is analogous to others that have found the cost to repair or replace property damaged following deficient inspections or other services constituted consequential damages. See Urling v. Helms Exterminators, Inc., 468 So.2d 451, 454 (Fla. 1st DCA 1985) (finding the cost to repair extensive termite damage to a home purchased after a termite inspection company erroneously certified that the home was free of damage constituted consequential damages, whereas the cost of the termite inspection constituted actual damages); Rollins, Inc. v. Heller , 454 So.2d 580, 585 (Fla. 3d DCA 1984) (finding where a home was burglarized following the installation of a deficient security system, the actual damages constituted the cost of the defective system, not the value of the items stolen during the burglary).See also Mosteller Mansion, LLC v. Mactec Eng'g & Consulting of Georgia, Inc. , 190 N.C.App. 674, 661 S.E.2d 788, n.2 (2008) (finding a builder's claim for damages to repair and recondition soil after an engineering firm erroneously conducted soil testing were consequential and indirect damages because they "do not flow directly and immediately from any action of" the engineering firm); Fed. Reserve Bank of Richmond v. Wright , 392 F.Supp. 1126, 1131 (E.D. Va. 1975) (finding a property owner's cost to correct structural defects that resulted from defective plans prepared by an architect constituted indirect damages); McCloskey & Co., Inc. v. Wright , 363 F.Supp. 223, 226 n. 1, 230 (E.D. Va. 1973) (finding the cost to repair a leaking roof caused by an architect's defective plans constituted consequential or incidental damages); Richmond Redevelopment & Hous. Auth. v. Laburnum Const. Corp. , 195 Va. 827, 80 S.E.2d 574, 579-80 (1954), superseded by statute on other grounds (finding damages caused by the explosion of a faulty gas line were consequential).

We acknowledge the case at hand is distinguishable because here, the contract between the Airpark and Passero expressly required Passero to inspect, observe, and monitor the construction work and to determine the suitability of the materials used by the contractor. Thus, we certify the following question as one of great public importance:

WHERE A CONTRACT EXPRESSLY REQUIRES A PARTY TO INSPECT, MONITOR, AND OBSERVE CONSTRUCTION WORK AND TO DETERMINE THE SUITABILITY OF MATERIALS USED IN THE CONSTRUCTION, BUT THE PARTY FAILS TO DO SO AND INFERIOR MATERIALS ARE USED, ARE THE COSTS TO REPAIR DAMAGE CAUSED BY THE USE OF THE IMPROPER MATERIALS GENERAL, SPECIAL, OR CONSEQUENTIAL DAMAGES?

Finally, we reject the Airpark's argument that all limitations on liability for special or consequential damages in contracts involving professional service corporations such as Passero should be declared void pursuant to public policy. There is no public policy that would prohibit sophisticated parties such as Passero and the Airpark, which is a governmental entity, from negotiating a contract that limits liability for consequential damages. Thus, we AFFIRM but CERTIFY a question of great public importance.

Lewis, J., concurs; Rowe, J., concurs in part and dissents in part with opinion.

ROWE, J., concurring in part, and dissenting in part.

I concur in affirmance of the partial final summary judgment appealed. However, I dissent from the decision to certify a question to the supreme court.


author: PER CURIAM.

text:
    Rodney TUNDIDOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3279
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 29, 2019 Rehearing Denied March 28, 2019
    Rodney Tundidor, Miami, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Walsh v. State, 198 So.3d 783 (Fla. 2d DCA 2016).

ORFINGER, HARRIS and SASSO, JJ., concur.