Legal Document: ORANGE COUNTY FLORIDA vs. GEO TECHNICAL AND ENVIRONMENTAL CONSULTANTS INCet al.

On July 28, 2008 a Memorandum 18690019 Comments: IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE was filed involving a dispute between Orange County Florida, and Amdrill Inc, Geo Technical And Environmental Consultants Inc, for CA - Negligence Other in the District Court of Orange County.

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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO.: 48-2008-CA-0018503-O

ORANGE COUNTY, FLORIDA,
a political subdivision of the State of Florida
Lydia Gardner

Plaintiff,

GEO TECHNICAL AND ENVIRONMENTAL
2011 Oct 03 04:42 PM

CONSULTANTS, INC., a Florida corporation,
and AMDRILL, INC., a Florida corporation,

Defendants.
____________________________________/

DEFENDANT, GEO TECHNICAL AND ENVIRONMENTAL CONSULTANTS, INC.'S
MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE
eFiled in the Office of Clerk of Court, Orange County Florida

DEFENDANT, GEO TECHNICAL AND ENVIRONMENTAL CONSULTANTS, INC.'S
AFFIRMATIVE DEFENSES TO PLAINTIFF'S AMENDED COMPLAINT

Defendant, GEO TECHNICAL AND ENVIRONMENTAL CONSULTANTS, INC.,

("GEC"), by and through its undersigned counsel and pursuant to Florida Rule of Civil

Procedure 1.140 and all applicable rules of the Florida Rules of Civil Procedure hereby

files this Memorandum in Opposition to Plaintiff's Motion to Strike.

As will be set forth below, Plaintiff's Motion to Strike Affirmative Defenses 93, 96,

98 and 99 should be denied. Plaintiff misconstrues the language of Chapter 556 and

argues to this Court that the legislature's silence on comparative negligence transforms

Chapter 556 into a strict liability statute for which GEC is liable for damage to a utility

during excavation, regardless of Plaintiff's conduct.1 However, an analysis of Chapter

1
Plaintiff does acknowledge in the Motion to Strike that section 556.106, Florida Statutes, states that an
excavator is not liable if a member operator fails to discharge a duty imposed by the Act after receiving
proper notice, and an underground facility of the member operator is damaged by an excavator who has
complied with the Act and the damage is caused by the proximate result of the member operator's failure
to discharge such duty. Fla. Stat. §556.106(3).
556 demonstrates that it is not a strict liability statute which would preclude Defendant

from raising comparative negligence. Instead the basic rules of statutory construction

demonstrate that comparative negligence remains a viable defense within this statutory

scheme. Further, the legislature has codified comparative negligence in section 768.81,

Florida Statutes, and specifically held that in all negligence actions, including any claims

for strict liability, a defendant shall be afforded the defense of comparative negligence.

BACKGROUND

Orange County has brought a multi-count complaint against GEC and Amdrill,

Inc. ("Amdrill"), alleging statutory negligence. The crux of Plaintiff's allegations are that

GEC had a duty to Orange County to excavate in the vicinity of a certain sewage force

main using reasonable care to not damage the force main and GEC allegedly breached

that duty causing damage.2 Orange County further alleges that section 556.106(2)(a),

Florida Statute, creates a rebuttable presumption that GEC is negligent since GEC

allegedly advised Sunshine State One Call that machinery would not be used for

excavation. Plaintiff alleges that Orange County has been damaged by GEC's

negligence.

On or about September 17, 2007, GEC contacted Sunshine State One Call of

Florida, Inc. to notify that excavation would be occurring on the north side of Sandlake

Road and the east side of Shingle Creek.

On or about September 21, 2007, an outside utility locator by the name of James

Mosely attempted to locate a thirty-six inch force main which ran parallel to Sandlake

Road in the vicinity where GEC intended to excavate.3 Mr. Mosely could not locate the

2
The statutory negligence claim against Amdrill is identical to that of GEC.
3
GEC was attempting to conduct soilborings as part of itscontract with a consultant retained by the
Florida Department of Transportation as part of the State's road widening project of Sandlake Road.

2
thirty-six inch force main and advised GEC personnel they would have to seek guidance

from Orange County personnel.

On September 21, 2007, GEC, by and through Chris Meyers, an engineer with

GEC, requested assistance from a consultant on the FDOT road widening project.

Specifically, Mr. Meyers sought additional assistance and clarification as to the location

where the thirty-six inch force main was in relation to the proposed drilling location. On

September 26, 2007, Orange County personnel emailed directly to GEC the Plans and

Profile for the thirty-six inch force main at issue. The Plan and Profile showed the
location of the thirty-six inch force main in relation to Sandlake Road, as well as the

potential depth. Specifically, the Plan and Profile showed that the existing thirty-six inch

force main was approximately twenty-one feet set-off from Sandlake Road.

On or about September 27, 2007, personnel from Orange County met on site

with personnel from GEC in an effort to locate the thirty-six inch force main.

Orange County advised GEC personnel that the stake representing the location

where GEC proposed to drill was on top of the thirty-six inch force main. Orange

County personnel advised GEC personnel to move the drilling location six to seven feet

south to a location within a tree line.

GEC personnel, after evaluating the Plan and Profile provided by Orange

County, as well as the statements made by Orange County that GEC needed to move

the drilling location six to seven feet south, moved the location six feet south.4

On October 4, 2007, Amdrill, a subcontractor drilled to a depth of approximately

thirty-five feet. At which time, the thirty-six inch force main was damaged.

4
Orange County disputes that GEC moved the drilling location.

3
LEGAL STANDARD

Florida Rule of Civil Procedure 1.140(f) entitled "Motion to Strike" states that a

"party may move to strike or the court may strike redundant, immaterial, impertinent, or

scandalous matter from any pleading at any time." Fla. R. Civ. P. 1.140(f).

The striking of pleadings, including affirmative defenses, is a drastic action to be

used sparingly by the courts and any doubts are to be resolved in favor of the "attacked"

pleadings. Bay Colony Office Building v. Wachovia Mortgage Co., 342 So. 2d 1005

(Fla. 4th DCA 1977). A motion to strike an affirmative defense alleged in an answer

tests the legal sufficiency of such defense. Windel v. Sebold, 241 So. 2d 165 (Fla. 4th

DCA 1970); Cyahoga Wrecking Corp. v. Mastres, 368 So. 2d 380 (Fla. 3rd DCA 1979)

(quoting Burns v. Equilease Corporation, 357 So. 2d 786 (Fla. 3rd DCA 1978)). Further,

it is reversible error for a trial court to strike an affirmative defense where evidence may

be presented to support it. Cyahoga Wrecking Corp. v. Mastres, 368 So. 2d 380 (Fla.

3rd DCA 1979) (quoting Burns v. Equilease Corporation, 357 So. 2d 786 (Fla. 3rd DCA

1978)). As the court stated in Windel, supra, "it may well be that at trial that the

defendant will be unable to offer any competent evidence to sustain such an affirmative

defense…but a defense which is legally sufficient is not subject to a motion to strike

under Rule 1.140(f) simply because at some time prior to trial it appears that defendant

may be unable to produce evidence at the trial to sustain such a defense." Windel v.

Sebold, 241 So. 2d 165 (Fla. 4th DCA 1970).

In this case, GEC has set forth legally sufficient affirmative defenses and there is

no basis for Plaintiff's Motion to Strike.

4
ARGUMENT

I. Facility Damage Prevention Safety Act is Not a Strict Liability Statute
and Therefore, Comparative Negligence Remains a Viable Affirmative
Defense.

Plaintiff's argument as to the striking of GEC's comparative negligence

affirmative defense can be summarized as follows:

 Chapter 556 otherwise known as Florida's Underground Facility Damage

and Safety Prevention Act makes no reference to comparative negligence.

Accordingly, comparative negligence may not be utilized as an affirmative

defense.

 Section 556.106(2)(c) states "obtaining information as to the location of an

underground facility from the member operator as required by this Chapter

does not excuse any excavator from performing an excavation or

demolition in a careful and prudent manner, based on accepted

engineering and construction practices, and it does not excuse the

excavator from liability for any damage or injury resulting from any

excavation or demolition." The inclusion of this language somehow

precludes the use of the comparative negligence affirmative defense.

Plaintiff jumps to the conclusion that because the Act is silent as to comparative

negligence and section 556.106(2)(c), Florida Statutes, does not act as a complete bar

to damages that somehow comparative negligence is no longer available against a

claim for negligence. However, Plaintiff attempts to transform Chapter 556 into a strict

liability statute in contravention to establish case law.

In determining whether a statute is evidence of negligence; negligence per se, or

strict liability, the courts look to the purpose of the statute and to whom itprotects.

5
Tamiami Gun Shop v. Klein, 116 So. 2d 421 (1959). Absent express legislative

language to the contrary, the Florida Supreme Court has held that only the violation of a

statute intended to protect a class of persons from their inability to exercise self

protected care will bar comparative negligence. Tamiami Gun Shop v. Klein, 116 So.

2d 421 (1959). Stated differently, if the defendant's negligence consists of a violation of

a statute intended to protect the class of persons from their inability to exercise self

protective care, a member of such class is not barred by his contributory negligence for

recovery from bodily harm caused by the violation of such statute. Id. (citing
Restatement of Torts §43).

In Tamiami Gun Shop v. Klein, 116 So. 2d 421 (1959), a minor traded a rifle for

.30/30 magazine fed lever action Winston Model 94 rifle. After the trade, the minor was

injured, while he was holding the gun in his lap. The vehicle in which he was driving hit

a bump in the road and the rifle discharged. The minor sought to hold the gun shop

strictly liable under section 790.18, Florida Statutes, as well as a City of Miami

ordinance. Defendants answered plaintiff's complaint and raised contributory

negligence. The trial court struck the affirmative defense. Id.

On appeal, the District Court affirmed the lower court's theory that the statute

was intended to protect a class of persons against the type of harm which did in fact

occur. Id.

The Supreme Court held that in order for a statute to preclude a defendant from

utilizing comparative negligence, the court must find legislative intent to remove the

defense. The Court further cited with approval the Restatement of Torts §43, and held

that a strict liability statute would be found when the statute is designed to protect a

class of persons from their inability to exercise self protected care. Id.

6
In Eckelbarge v. Frank, 732 So. 2d 433 (Fla. 2nd DCA 1999), plaintiff, Frank,

brought suit for a wrongful death action against Eckelbarge for the drowning of their

daughter, Felicia, in the Eckelbarge's swimming pool. The Frank's alleged that the

Eckelbarge's violated a Polk County ordinance which resulted in strict liability. The

Court of Appeals reversed. Id.

The District Court explained that statutes and ordinances are categorized into

three groups to determine the standard to apply when there is a violation of statute.

These categories come under the general headings of strict liability, negligence per se,
and evidence of negligence. Id. (citing DeJesus v. Seaboard Coastline Railroad, 281

So. 2d 198 (1973)). The Court further explained that strict liability statutes are

"designed to protect a particular class of persons from the inability to protect

themselves." The Court noted that statutes classified as strict liability are narrow in

scope as this group of statutes bar the defendant from alleging comparative negligence.

The Court found that the Polk County ordinance specifically stated that it was not

to replace the degree of care which was required of parents to supervise and control

either their own premises, or their own children who may wonder upon the premises of

another where a swimming pool was located. Further, the plaintiff, Frank, admitted to

police officers at the scene that her children always ran off without her knowing it and

that she slept a lot during the day and let the children play. Accordingly, the Court held

that the ordinance did not demonstrate legislative intent to have a strict liability

ordinance. Id.

In this case, the legislative intent of Chapter 556 clearly demonstrates that

Chapter 556 was not enacted to protect a particular class of persons from their inability

to protect themselves. Section 556.101, Florida Statutes, states as follows:

7
(2) It is the intent of the legislature to protect access for
excavating contractors and the public to provide notification
to the system of their intent to engage in excavation or
demolition….

(3) It is the purpose of this chapter to: (a) aid the public by
preventing injury to persons or property and the interruption
of services resulting from damage to an underground facility
caused by excavation or demolition operations….

Based on the foregoing, it is clear that the primary legislative intent was to protect

the public as a whole and not a particular class of persons from their inability to protect

themselves. Therefore, based on the holdings of Tamiami Gun Shop and Eckelbarge,

there is no basis for a finding that an excavator who violates of Chapter 556 is strictly

liable, thereby precluding the affirmative defense of comparative negligence.

Plaintiff next argues that section 556.106(2)(c) bars Defendant's affirmative

defense of comparative negligence. Section 556.106(2)(c) states as follows:

Obtaining information as to the location of an underground
facility from the member operator as required by this chapter
does not excuse any excavator from performing an
excavation or demolition in a careful and prudent manner,
based on accepted engineering and construction practices
and does not excuse the excavator from liability for any
damage or injury resulting from any excavation or
demolition.

It appears to be Plaintiff's argument that because the provision of information by

the member operator does not excuse the excavator from liability that this provision

somehow bars the affirmative defense of comparative negligence. However, the

provision merely states that an excavator may not use the provision of information by

the County as a complete bar.

In essence, the statute states that GEC may not move for summary disposition

on the basis that GEC relied upon information provided by the County. However, it

8
does not preclude GEC from arguing that to the extent GEC is alleged to be negligent in

its excavation of the force main, that the County was also negligent in providing

misinformation. Clearly, the legislature could have expressly stated that an excavator is

barred from raising the defense of comparative negligence in a claim under Chapter

556. Instead, the legislature chose to utilize the word "excuse." In fact, the rules of

statutory construction demonstrate that section 556.106(2)(c) support the interpretation

that said section does not preclude comparative negligence as an affirmative defense,

but merely precludes a defendant, excavator, from an absolute defense for reliance
upon information from a member/operator.

The court must begin with the actual language in the statute, as legislative intent

is determined primarily from the statute's text. When the language of the statute is clear

and unambiguous and conveys a clear and definite meaning, there is no occasion for

resorting to the rules of statutory interpretation and construction then the statute must

be given its plain and obvious meaning. Bennett v. St. Vincent's Medical Center, Inc.,

2011 Fla. Lexis 1571 (2011); Gulfstream Park Racing Association, Inc. v. Tampa Bay

Downs, Inc., 948 So. 2d 599 (2006); Florida Department of Safety and Motor Vehicles v.

Hernandez, 2011 Fla. Lexis 1282 (Fla. Sup. Ct. 2011). Courts must give statutory

language its plain and ordinary meaning, and is not at liberty to add words that were not

placed there by the legislature. Childers v. Cape Canaveral Hospital, 898 So. 2d 973

(Fla. 5th DCA 2005).

In section 556.106(c), the Florida legislature chose to use the word "excuse."

The plain meaning of the word "excuse", as defined by Miriam Webster's Dictionary is

"to forgive entirely or disregard as trivial important"; "to grant exemption or release to".

9
Accordingly, the plain and ordinary meaning of the word "excuse" supports

GEC's interpretation that section 556.106(c) is precluding an excavator from raising

receipt of information from the member operator as a complete bar to liability.

Moreover, the legislature is presumed to know the existing law when itenacts a

statute. Joshua v. City of Gainesville, 768 So. 2d 432 (2000).

The Underground Facility Damage Prevention and Safety Act was codified in

1993. The language contained in section 556.106(2)(c) was contained in the 1993
version. At the time that Florida's Underground Facility Damage Prevention and Safety

Act was enacted the legislature had already enacted section 768.81, Florida Statutes,

otherwise known as the "Comparative Fault" Statute. The 1992 version of the

Comparative Fault Statute stated as follows:

(2) Effective Contributory Fault—In an action to which this
section applies, any contributory fault chargeable to the
claimant diminishes proportionately the amount awarded as
economic and non-economic damages for an injury
attributable to the claimant's contributory fault, but does not
bar recovery….

(4) applicability—

(a) this section applies to negligence cases. For purposes of
this section, "negligence cases" includes, but is not limited
to, civil actions for damages based upon theories of
negligence, strict liability, products liability, professional
malpractice, or couched in terms of contract or tort, or
breach of warranty and like theories. In determining whether
a case falls within the term "negligence cases," the court
shall look to the substance of the action and not the
conclusory terms used by the parties.

The quoted language demonstrates that the legislature intended comparative

fault to apply to negligence and strict liability cases in the State of Florida. The

legislature, in enacting Florida's Underground Damage and Utility Act in 1993 is

10
presumed to know of the comparative fault provision which would apply to any claim

brought under the Florida's Underground Damage and Utility Act. However, despite the

legislature's knowledge of the existence of the comparative fault provision, and its

applicability to any claim under Chapter 556 for negligence, the legislature chose not to

make any reference to exclude the statutory affirmative defense.

As previously stated, a court may not add terms that were not placed there by the

legislature. Childers v. v. Cape Canaveral Hospital, 898 So. 2d 973 (Fla. 5th DCA

2005). To accept Plaintiff's interpretation that comparative fault is not available under
Chapter 556 because Chapter 556 is a strict liability statute would be to render the

words contained in section 768.81 meaningless.

Plaintiff next argues that Florida courts have observed that the Underground

Facility Damage Prevention and Safety Act has not recognized the affirmative defense

of comparative negligence. In support, Plaintiff cites to MCI Telecommunications Corp

v. Mainline Plumbing, Inc., 1998 U.S. Dist. Lexis 23523 (S.D. Fla. 1998). However, in

MCI Telecommunications Corp v. Mainline Plumbing, Inc., the Court found that

comparative negligence may exist against the utility operator when the operator

provided inaccurate information to the excavator regarding the location of its

underground lines. Id.

In MCI Telecommunications Corp v. Mainline Plumbing, Inc., MCI brought suit

under the Act for negligence and trespassing against Mainline for damage to MCI's fiber

optic cable while Mainline was trying to repair a sewer pipe for a third-party. The

Mainline employees attempted to locate the damaged sewer pipe with shovels.

However, when they were unable to locate the pipe, they returned to the site the next

morning with a Backhoe, and while using the Backhoe damaged MCI's cables. MCI

brought a motion for summary judgment arguing that MCI was not contributory

11
negligent. Mainline, opposed MCI's motion for partial summary judgment and argued

that MCI was negligent in burying its cables on top of, or near, a sewer line and

therefore, was comparatively negligent. Id. The Court held that the issue of

comparative negligence had not been decided by a Florida Court. However, the Court

acknowledged that other jurisdictions have allowed an excavator to raise the affirmative

defense of comparative fault when the allegation is that the member operator provided

inaccurate information to the excavator regarding the location of its underground lines.

MCI Telecommunications Corp v. Mainline Plumbing, Inc., 1998 U.S. Dist. Lexis 23523
(S.D. Fla. 1998); Bellsouth Telecommunications, Inc. v. Johnson Brothers Corp., 1997

U.S. App. Lexis 12680 (Fifth Circuit 1997).

In this case, there will be ample evidence offered to show that Orange County

made verbal and written representations as to not just the location of the thirty-six inch

force main, but to where GEC should drill in order to avoid impacting the thirty-six inch

force main. Moreover, there is ample evidence to demonstrate that Orange County

representatives were unsure as to the location of the thirty-six inch force main when

they made the representations as to where the force main actually existed, and whether

GEC should drill, and despite this lack of knowledge failed to convey their lack of

knowledge to GEC.

In conclusion, Plaintiff's Motion to Strike Affirmative Defenses 93 and 99

regarding comparative negligence should be denied. Plaintiff, by their own admission,

has brought negligence claims against GEC and Amdrill alleging violation of Chapter

556, Florida Statutes. Section 556.106, Florida Statutes is not a strict liability statute.

Florida courts have squarely held that a strict liability statute may only be found through

express language by the legislature or if the statute is designed to protect a specific

class of persons who cannot protect themselves. In this case, the legislative intent, as

12
set forth in section 556.101, Florida Statutes, clearly demonstrates that Chapter 556 is

for the benefit of the public as a whole.

Moreover, a review of Chapter 556, and more specifically, section 556.106,

Florida Statutes, demonstrates that the plain meaning of section 556.106(2)(c) is to

preclude an excavator from raising as an absolute defense to the member operators'

providing inaccurate information. However, no where does the language of section

556.101(2)(c) state that the affirmative defense of comparative negligence is precluded.

A court may not add or modify terms not placed there by their legislature. Instead, the
courts must give statutory language its plain and ordinary meaning. Section

556.101(2)(c) states that "an excavator who obtains information as to the location of an

underground facility from the member operator does not excuse the excavator from

liability for any damage or injury resulting from any excavation or demolition. The

legislature utilized the term "excuse." The ordinary and plain meaning of the word

"excuse" as defined by Miriam Webster's dictionary is "to forgive entirely or disregard as

trivial import; to grant exemption or release to." Therefore, assigning the plain meaning

to the word "excuse" within section 556.101(2)(c) demonstrates the legislature intended

said statutory section to preclude excavator from raising as an absolute bar inaccurate

information obtained by the member operator.

Lastly, the Act was enacted in 1993 after the legislature had enacted section

768.81, Florida Statutes, otherwise known as the "comparative fault" statute. The

comparative fault statute specifically states that the allocation of fault as to Plaintiff may

be had in strict liability cases. Accordingly, when the legislature was enacting Chapter

556, they were aware that section 768.81, Florida Statutes had been enacted and that it

would apply to any statute that was a strict liability statute based on negligence.

Despite this knowledge, the legislature failed to include language to exempt the

provisions of section 768.81, Florida Statutes.

13
II. GEC'S Affirmative Defense No. 96 is Legally Sufficient and Therefore
Should Not be the Subject of a Motion to Strike.

Plaintiff next argues that GEC's Affirmative Defense No. 96 should be struck as

GEC cannot prove the affirmative defense at trial. However, as has been noted in the

Legal Standard section of this Memorandum, a motion to strike an affirmative defense

tests the legal sufficiency of a defense and not whether a defendant may be able to

prove the defense. Windell v. Seabold, 241 So. 2d 165, Fla. 4th DCA 1970; Cuyahoga

Wrecking Corporation v. Mastres, 368 So. 2d 380 (Fla. 3rd DCA 1979). It is reversible

error for a trial court to strike a defense where evidence may be presented to support it.
Id.

In this case, GEC tracked the language contained in section 556.106(3) to plead

this affirmative defense. Plaintiff takes exception with the affirmative defense on the

grounds that GEC cannot prove that it complied with the Act or provide Orange County

with proper notice. However, whether GEC can prove this affirmative defense at trial is

not the basis for a motion to strike.

Moreover, to the extent the Court takes note of Orange County's argument that

GEC failed to allege elements of the affirmative defense then GEC would respectfully

request the Court to strike without prejudice so as to allow GEC an opportunity to re-

plead the defense alleging any perceived missing elements.

III. GEC's Affirmative Defense Contained in Paragraph 98 of its Answer
and Affirmative Defenses Should not be Stricken as the Affirmative
Defense is Setting Forth Facts Demonstrating Why GEC Acted
Reasonably and Prudently in its Excavation.

Orange County next moves to strike Paragraph 98 of GEC's affirmative defenses

alleging that the language of the affirmative defense is nothing more than a rehash of

the estoppel affirmative defense contained in Paragraph 95. GEC's affirmative defense

states as follows:

14
GEC would affirmatively aver they utilized reasonable care in
the drilling including, but not limited to, reviewing as-built
drawings provided by Orange County as to the location of
the force main; speaking with Orange County locators who
advise as to the exact location of the 36-inch force main in
relation to GEC's originally proposed drilling location; moving
the drilling location pursuant to the directive of Orange
County to a location agreed to by Orange County.

As can be readily ascertained from review of the affirmative defense, it does not

allege that Orange County is estopped from asserting liability against GEC because of

Orange County's representations. Instead, the affirmative defense is much more

nuanced and states that GEC's actions, including, but not limited to, relying on as-built

drawings provided by Orange County as to the location of the force main; speaking with

Orange County locators and moving the drilling location based on analysis of factors,

including what was stated by Orange County, was reasonable and prudent and in

accordance with requirements of section 556.106(2).

While section 556.106(2)(c) states that "an excavator may not rely upon

information or be excused from absolute liability," it does not state that an excavator

cannot rely upon information in conjunction with plans and other factors which would

demonstrate the excavator performing an excavation in a careful and prudent manner,

based on accepted construction practices.

CONCLUSION

In conclusion, Plaintiff's Motion to Strike the Affirmative Defenses contained in

Paragraphs 93, 96, 98 and 99 should be denied. The above affirmative defenses are

legally sufficient affirmative defenses which should be allowed to be pled by GEC.

CERTIFICATE OF SERVICE

I hereby certify that on October 3rd, 2011, I electronically filed the foregoing with

the Clerk of the Courts by using the ECF system which will send a notice of electronic

15
filing to the following: William C. Turner, Jr., Assistant County Attorney, Orange County

Attorney's Office, 435 N. Orange Ave., Suite 300, Orlando, FL, 32801, and Richard A.

Keller, Esquire, Scarborough, Hill, & Rugh, P.L., 390 N. Orange Ave., Suite 1610, P.

O. Box 2311, Orlando, FL, 32802.

/s/ Adam C. Herman
ADAM C. HERMAN, ESQUIRE
Florida Bar No.: 0146961
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN, P.A.
Landmark Center One
315 E. Robinson Street, Suite 550
Orlando, FL 32801-2719
Telephone: 407-420-4380
Telecopier: 407-839-3008
E-mail: acherman@mdwcg.com
Attorneys for Defendant,
GEO TECHNICAL AND ENVIRONMENTAL
CONSULTANTS, INC.

21/397758.v1

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Luis F Calderon Track Judge’s New Case

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July 28, 2008

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