South Florida Coastal Electric, Inc. appeals a summary judgment entered in favor of Treasures on the Bay II Condominium Association, Inc. The summary judgment eliminated South Florida's claim for payment for electrical work on Treasures' building. We reverse because the trial court granted summary judgment based on an affirmative defense for which the record reveals material issues of fact.
KMC, a developer, established Treasures as part of a condominium conversion project. KMC filed a declaration of condominium in 2005. At the time, KMC controlled the association, and Mike Flood, one of its officers, served as the association's manager. KMC contracted with South Florida to perform electrical work on certain developer-owned units and common
South Florida obtained a judgment for payment against KMC. South Florida, however, did not include Treasures in its suit against KMC. South Florida sued Treasures on a theory that Treasures is jointly and severally liable to South Florida for payment for the work performed on the property. In the trial court, Treasures successfully argued it was not required to pay for South Florida's work because KMC, not Treasures, entered into the contract with South Florida.
The pleadings in this case describe a dispute over whether Treasures agreed to pay South Florida. In its complaint, South Florida alleged Treasures and South Florida "entered into a written contract to perform electrical contracting services and related improvements to [Treasures' building]." South Florida further alleged it "performed electrical contracting services for [Treasures]," and that South Florida "invoiced [Treasures] for said services, but [Treasures] has failed to pay." South Florida alleged Treasures refused a demand for payment. South Florida attached its claim of lien to its complaint, which lists the property at issue as Treasures on the Bay and Treasures on the Bay II and the owners of the property as Treasures on the Bay II Condo Association, Inc., and KMC EC II, LLC.
In its answer, Treasures alleged as affirmative defenses:
Thus, the invoices were incorporated by reference into South Florida's Complaint, and due to Treasures' allegations in response, the issue became whether the reference on those invoices to "Treasures on the Bay" was to Treasures or KMC.
Summary judgment is proper only if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Under the summary judgment rule, to address this issue, the trial court examines the pleadings, as well as the "affidavits ... depositions and other materials" on record with the trial court. See Fla. R. Civ. P. 1.510(c). Our standard of review for summary judgment is de novo. Volusia Cnty., 760 So.2d at 130. In reviewing a summary judgment, this Court "must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed." Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001); see also Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003) (quoting Shaffran v. Holness, 93 So.2d 94, 97-98 (Fla.1957)); Rothenberg v. Leevans Corp., 155 So.2d 839, 839 (Fla. 3d DCA 1963). Thus, in this case, we must view the record in the light most favorable to South Florida.
A judgment must be based upon a claim or defense that was either properly pled or tried by consent of the parties. See Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (requiring that the pleadings state ultimate facts in support of
Whether an agency relationship exists is generally a question of fact, and thus disputes regarding the material facts in support of agency will prevent summary judgment. See Villazon, 843 So.2d at 855-56; see also Port Largo Club, Inc. v. Warren, 476 So.2d 1330, 1333 (Fla. 3d DCA 1985). In examining whether agency exists, the principal's actions are the primary indication of the relationship, and such examination is generally done by the trier of fact unless there is indisputably no connection between the principal and the agent. See Villazon 843 So.2d at 855; Moore v. River Ranch, Inc., 642 So.2d 642, 643-44 (Fla. 2d DCA 1994). Thus, an agent who exceeds his authority cannot create agency and make the principal liable, see Edwards v. Law, 46 Fla. 203, 36 So. 569, 570 (1903), but a principal who fails to repudiate or prevent a previously-authorized agent's continued representation can be held responsible for the agent's actions. See Deutsche Credit Corp. v. Peninger, 603 So.2d 57, 58-59 (Fla. 5th DCA 1992).
Summary judgment must be reversed in this case because the record reveals a disputed issue of material fact. The complaint and answer alleged a dispute regarding whether the invoices, which were directed to "Treasures on the Bay," were for services requested by and rendered to Treasures, KMC, or both. South Florida alleged that it entered into a contract for electrical contracting services and related improvements to Treasures' building, it performed the services, and was not paid. In response, Treasures alleged it had no contract with South Florida, and that KMC is liable for payment of the invoices. Therefore, the issue of who contracted for the work — Treasures, KMC, or some combination of both — was in dispute and an issue necessary to determine Treasures' summary judgment motion.
Moreover, the record reflects a dispute regarding whether the person requesting the work was acting for KMC or Treasures. The parties dispute whether Flood represented himself to South Florida as the agent for the developer-controlled Treasures or the owner-controlled Treasures. Consequently, Flood's agency relationship with these entities must be addressed by the trier of fact. Further evidence may show that Flood acted for Treasures, or Treasures' failure to object to continued work might have created an apparent agency for Treasures.
For these reasons, we disagree with our dissenting colleague's conclusion
Treasures further contends that any disputes of fact are immaterial because under Section 718.121, Florida Statutes (2005), it cannot be liable as a matter of law for South Florida's work. The plain language of the statute does not compel that result. Under the statute:
§ 718.121(2) (emphasis added). There are issues of fact that must be resolved to determine whether the association authorized the improvements that led to the lien before the statute can apply in this case.
Accordingly, we reverse the summary judgment entered below, and remand for further proceedings.
Reversed and remanded.
EMAS, J., concurs.
LAGOA, J., (dissenting).
For the following reasons, I respectfully dissent.
The complaint filed in the lower court by the plaintiff, South Florida Coastal Electric, Inc. (hereinafter "South Florida Coastal"), alleged two causes of action against Treasures on the Bay II Condominium Ass'n, Inc. (hereinafter "Treasures"): Count 1 for breach of contract, and Count 2 for foreclosure of a mechanic's lien.
Specifically, South Florida Coastal alleged:
(Complaint, ¶ 4) (emphasis added).
Additionally, in Count 1 South Florida Coastal re-alleged and re-adopted paragraph four of its complaint, and further asserted that "Plaintiff and Defendant entered into a contract for Plaintiff to provide electrical services to Defendant." (¶ 14).
South Florida Coastal, however, never sought leave of court to amend its complaint.
The majority, nonetheless, reverses the trial court's grant of final summary judgment in favor of Treasures based on an agency theory not plead anywhere in South Florida Coastal's complaint. While the majority is correct that "[w]hether an agency relationship exists is generally a question of fact," slip op. at 4, there must be some allegation of agency made in the complaint. Here, the complaint filed by South Florida Coastal consists of twenty-seven paragraphs. No mention or reference is made to any type of agency relationship — actual or apparent. As such, the majority's conclusion that a reversal is warranted as to Counts 1 and 2 based on a purported agency relationship is in direct contravention to both the Florida Supreme Court's precedent and this Court's precedent.
As a threshold matter, South Florida Coastal did not plead agency — actual or apparent — as a basis for liability in its complaint. In order to plead a claim for actual agency, the following elements must be alleged: "(1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent." Fernandez v. Fla. Nat'l Coll., Inc., 925 So.2d 1096, 1101 (Fla. 3d DCA 2006) (quoting Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla. 1990)).
In order to plead a claim for apparent agency, "facts supporting [the following] three elements must be alleged: `1) a representation by the purported principal; 2) reliance on that representation by a third party; and 3) a change in position by the third party in reliance on the representation.'" Saralegui v. Sacher, Zelman, 19 So.3d 1048, 1051-52 (Fla. 3d DCA 2009) (quoting Ocana v. Ford Motor Co., 992 So.2d 319, 326 (Fla. 3d DCA 2008)); see also Fernandez, 925 So.2d at 1101.
Here, it is undisputed that South Florida Coastal did not mention agency, let alone plead any of the elements necessary to allege a claim for either "actual agency" or
At best, South Florida Coastal asserted in its initial brief to this Court that Treasures and the developer, KMC, "were jointly and severally liable" to South Florida Coastal. The law, however, is clear that "issues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing." Saralegui, 19 So.3d at 1051 (quoting Fernandez, 925 So.2d at 1101 (citations omitted)). In Saralegui, this Court held that a second amended complaint that failed to allege facts supporting a claim for apparent agency could not withstand summary judgment. 19 So.3d at 1051-52. A fortiori, a complaint that does not even assert the existence of an agency relationship cannot survive summary judgment.
Moreover, in Goldschmidt, the Supreme Court specifically addressed the issue of pleading agency:
571 So.2d at 423 (emphasis added).
As South Florida Coastal failed to plead in its complaint the existence of an agency relationship, it is legal error for this Court to reverse the trial court's grant of summary judgment in favor of Treasures on the basis of an unpled agency claim. As this Court concluded in Saralegui, "[t]he trial court correctly declined to stretch the rules of pleading and apparent agency beyond their limits [and] [s]ummary judgment was proper." 19 So.3d at 1053.
Notwithstanding the fact that South Florida Coastal failed to plead agency, either actual or apparent, the majority contends that Treasurers injected the issue of "agency" into the proceedings through its affirmative defenses.
First, the majority fails to cite a single case to support its contention that an affirmative defense could create an agency theory on which the plaintiff could seek affirmative relief and would bear the burden of proof. Significantly, the majority fails to address the seminal Florida case on pleading agency, Goldschmidt. Nonetheless, the majority resuscitates South Florida Coastal's claim based on Treasures' "vaguely pleaded affirmative defenses." Even assuming arguendo that the "vaguely pleaded affirmative defenses" asserted agency claims — which they do not — Treasures' affirmative defenses do not satisfy the agency pleading requirements of Goldschmidt, 571 So.2d at 422. None of Treasures' affirmative defenses allege any of the required essential elements of either an actual agency relationship or an apparent agency relationship. See Fernandez, 925 So.2d at 1101 (actual agency); Saralegui, 19 So.3d at 1051-52 (apparent agency). Thus, agency was not legally at issue by way of the affirmative defenses.
Second, the majority also fails to address how the trial court erred in awarding summary judgment on the breach of contract claim in favor of Treasures, when, as South Florida Coastal concedes, its claim is based solely on a "written" contract, that does not exist. Indeed, Treasures' motion for summary judgment relied on Rule
Here, the majority creates a disputed issue of fact out of whole cloth. The majority contends that a disputed issue of fact exists regarding invoices for electrical services and who contracted for that work. As evidenced by the complaint, South Florida Coastal made no such claims. Indeed, South Florida Coastal did not attach invoices to the complaint and more importantly did not bring an action for open account or account stated. South Florida Coastal never sought leave to amend its complaint to add any such claims. South Florida Coastal's claim is based solely on breach of a written contract.
Additionally, the majority's assertion that "Treasures never argues surprise or prejudice" in South Florida Coastal's presentation of the issues to this Court is irrelevant to the legal analysis before this Court. Treasures did not need to argue "surprise or prejudice." This Court is bound by its own case law and the law is clear and unequivocal — at a summary judgment hearing, a trial court can only consider those issues raised by the pleadings. See Fernandez, 925 So.2d at 1101 (finding that plaintiffs waived claim of apparent agency by failing to plead apparent agency in complaint and failing to move to amend the complaint; "[I]ssues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing."). Hemisphere Nat'l Bank v. Goudie, 504 So.2d 785, 786 (Fla. 3d DCA 1987) (finding that bank's failure to raise claim in pleadings regarding individual's alleged status as endorser of note precluded trial court from ruling on claim on a summary judgment motion; "Under Florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings"); Reina v. Gingerale Corp., 472 So.2d 530, 531 (Fla. 3d DCA 1985) ("Although the plaintiff attempted to raise a number of
Here, the record is clear that South Florida Coastal sued on the basis of a breach of a written contract. In its response to Treasures' motion for summary judgment, South Florida Coastal conceded that no written contract exists. South Florida Coastal never sought to amend its complaint. Florida courts, however, "have consistently held that amendments to complaints should be liberally granted." Sad v. Prestige Motor Car Imports, Inc., 904 So.2d 466 (Fla. 3d DCA 2005). Thus, this is not a case where the trial court failed to account for an alternative theory of relief contained in a pleading. In reversing the trial court, the majority effectively rewards ineffective lawyering in order to reach the result it believes is just. This, however, is not appropriate for a court of law. Simply put, either a written contract exists or it does not. It is not the job of this Court to raise legal theories that were never pled below, despite South Florida Coastal's ample opportunity to do so.
Accordingly, for the reasons stated, I must respectfully dissent as I would affirm the trial court's entry of final summary judgment in favor of Treasures.
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
SOUTH FLORIDA COASTAL ELECTRIC INC., a Florida corporation, Plaintiff,
TREASURES ON THE BAY II CONDO ASSOC., INC., a Florida corporation,
CASE NUMBER: 08-04219 CA 27
COMPLAINT FOR FORECLOSURE AND DAMAGES
Plaintiff, SOUTH FLORIDA COASTAL ELECTRIC INC. ("SFCE" or Plaintiff) sues the Defendant, TREASURES ON THE BAY II CONDO ASSOC., INC. and alleges:
1. This is an action to foreclose a mechanic's lien and for damages in excess of $15,000.00 exclusive of interest, costs, and attorneys fees, and is within the jurisdiction of this court.
3. Defendant is a Florida corporation with its principal place of business in this County. Defendant is the owner of real property in this county described as:
4. Plaintiff is an electrical services contractor. On or about Oct. 1, 2006, Plaintiff and Defendant entered into a written contract to perform electrical contracting services and related improvements to the above-described real property. Plaintiff does not have a copy of the contract but will request same in discovery. From Oct. 1, 2006 until November 19, 2006, Plaintiff performed electrical contracting services for Defendant at said property, described as "the project."
5. Plaintiff has fully performed all conditions under the contract and has furnished labor, services and material to the project under the contract and has completed the project.
6. Plaintiff invoiced Defendant for said services, but Defendant has failed to pay Plaintiff the
7. Plaintiff has made demand upon Defendant for payment of the outstanding funds; however, Defendant has refused to pay same.
8. Plaintiff has retained the undersigned attorneys to represent it in connection with this action and has agreed to pay them a reasonable attorney's fee.
9. Plaintiff has performed all conditions precedent to bringing this action.
10. Within 90 days after the last labor, material and services were furnished for the project on November 19, 2006, Plaintiff filed a claim of lien against Owner's property that was recorded by the clerk of this court of this County, CFN 2007R0170598, OR BK 25374 PG 16581. Within 15 days thereafter, a claim of lien was served on Owner, a coy of which is attached.
11. At least five days before his action was filed, Plaintiff served Defendant with an affidavit listing the names of all lienors, and amounts due each, who had furnished labor, services and materials for the project and who had not then been paid.
12. This action was filed within one year after recording the claim of lien.
(Breach of Contract)
13. Plaintiff re-alleges and re-adopts paragraphs 1-12 above as if stated fully herein.
14. Plaintiff and Defendant entered into a contract for Plaintiff to provide electrical contracting services to Defendant. Plaintiff fully performed all conditions under the contract.
15. Defendant failed to pay Plaintiff for the services rendered in breach of the contract.
16. Defendant owes Defendant in excess of
WHEREFORE, Plaintiff demands judgment for damages against Defendant, and for its costs, pre-judgment interest, attorneys fees, and any other relief this Court deems just and proper under the circumstances.
(Foreclosure of Mechanic's Lien)
17. Plaintiff re-alleges and re-adopts the allegations stated in paragraphs 1-9 above as if stated fully herein.
18. Plaintiff is an electrical services contractor. On or about Oct. 1, 2006, Plaintiff and Defendant entered into a written contract to perform electrical contracting services and related improvements to the above-described real property. Plaintiff does not have a copy of the contract but will request same in discovery. From Oct. 1, 2006 until Nov. 19, 2006, Plaintiff performed electrical contracting services for Defendant at said property, described as "the project."
20. Plaintiff has fully performed all conditions under the contract and has furnished labor, services and material to the project under the contract and has completed the project.
21. Plaintiff invoiced Defendant for said services, but Defendant has failed to pay Plaintiff the
22. Plaintiff has made demand upon Defendant for payment of the outstanding funds; however, Defendant has refused to pay same.
23. Plaintiff has retained the undersigned attorneys to represent it in connection with this action and has agreed to pay them a reasonable attorney's fee.
24. Plaintiff has performed all conditions precedent to bringing this action.
25. Within 90 days after the last labor, material and services were furnished for the project on November 19, 2006, Plaintiff filed a claim of lien against Owner's property that was recorded by the clerk of the court of this County, CFN 2007R0170598, OR BK 25374 PG 16581. Within 15 days thereafter, a claim of lien was served on Owner, a copy of which is attached.
26. At least five days before his action was filed, Plaintiff served Defendant with an affidavit listing the names of all lienors, and amounts due each, who had furnished labor, services and materials for the project and who had not then been paid.
27. This action was filed within one year after recording the claim of lien.
WHEREFORE, Plaintiff demands judgment foreclosing its lien, and if the proceeds of this sale are insufficient to pay Plaintiff's claim, for a deficiency judgment, and attorney fees pursuant to § 713.29, costs, pre-judgment interest, and any other relief this Court deems just and proper.
7. The property which is the subject of the complaint and legally described therein and on the attached Claim of Lien is not owned by the Defendant.
8. At all times material to the complaint, the property described therein and which was the subject of the complaint was under the control of the developer of Defendant. Pursuant to Fla. R. Civ. P. 1.221, the members of the Association cannot be joined as a class while the Association was in control of the developer.
9. The Plaintiff is estopped from asserting a claim against the Defendant after the Plaintiff made conflicting and contradictory allegations in Miami-Dade Circuit Court Case 07-14214 CA 11 wherein Plaintiff sued KMC/ED II, LLC and obtained a judgment for the same claim presented herein. In said cause Plaintiff alleged KCM/EC, LLC was the owner of said property and contracted with Plaintiff to provide the services which form the basis of Plaintiff's complaint filed herein. Defendant requests this Court take judicial
10. The Plaintiff is attempting to join unit owners within the Association as a class by naming said Associations in violation of Fla. R. Civ. P. 1.221.
11. There never was a contract or any other agreement between Plaintiff and Defendant.