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Filing # 62021259 E-Filed 09/26/2017 03:42:15 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. CACE-16-008390
CARR BUILDERS LLC,
a Florida limited liability company,
Plaintiff,
vs.
SULLIVAN BROS., LLC,
a Florida limited liability company, and
SULLIVAN BROS CONSTRUCTION, LLC,
a Florida limited liability company,
Defendants.
/
SSR EEE
CARR BUILDERS, LLC AND LIBERTY MUTUAL INSURANCE COMPANY’S,
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO SULLIVAN’S DAMAGES
THROUGH SEPTEMBER 25, 2015
Plaintiff/Counter-Defendant, CARR BUILDERS, LLC (“CARR”) and Counter-
Defendant, LIBERTY MUTUAL INSURANCE COMPANY (“SURETY”), by and through their
undersigned counsel, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, move this
Honorable Court for entry of partial summary judgment against Defendant/Counter-Plaintiff,
SULLIVAN BROS CONSTRUCTION, LLC (“SULLIVAN”), for any damages it seeks in its
Amended Counterclaim through September 25, 2015. As grounds for this Motion, CARR and
SURETY state that the pleadings together with the attached affidavit of Richard K. Carr and
Deposition transcripts of Sean Sullivan and Richard K. Carr demonstrate that there are no
genuine issues of material fact relating to SULLIVAN’s release of all damages in its Amended
Counterclaim through September 25, 2015, and CARR and SURETY are entitled to summary
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343,
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 9/26/2017 3:42:14 PM.****judgment as a matter of law. The undisputed facts upon which this Motion is based and the
substantial matters of law to be argued in support of this Motion are set forth below.
INTRODUCTION
This lawsuit arises out of SULLIVAN’s failure to perform its obligations under a
subcontract it had with CARR to perform the utilities and site work construction of a rental
apartment community on which CARR was the general contractor. On or about May 6, 2016,
CARR initiated this action against SULLIVAN because SULLIVAN failed to perform its work
in accordance with the Revised Subcontract, failed to perform its work in a timely manner, failed
to pay its subcontractors and suppliers thereby requiring CARR to issue payment to avoid and
satisfy lien claims, and failed to complete the work required by the Subcontract thereby requiring
CARR to retain replacement subcontractors to complete the work. In turn, SULLIVAN has
asserted a Counterclaim which sets forth the following four counts against CARR and/or
SURETY: 1) Breach of Contract against CARR; 2) Quantum Meruit against CARR; 3) Unjust
Enrichment against CARR; and 4) Action on Payment Bond against CARR and SURETY.
The most significant portion of SULLIVAN’s Amended Counterclaim is comprised of
claims for payment for extra work allegedly performed by SULLIVAN’s subcontractor, The
Eddie Huggins Land Grading Co., LLC (“EHLG”), which SULLIVAN is pursuing pursuant to a
Liquidation Agreement (Pass-Through Agreement) that it entered into with EHLG. Not so
coincidentally, the most significant portions of the work that SULLIVAN failed to perform in
accordance with the Revised Subcontract (failed to perform in a timely manner, failed to pay
subcontractors and suppliers for, and failed to complete), is work that was included in the scope
of the sub-subcontract agreement between SULLIVAN and EHLG.
2
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343CARR and SURETY move for the entry of partial summary judgment relating to
SULLIVAN’s damages in its Amended Counterclaim through September 25, 2015. In Counts I
through IV of SULLIVAN’s Amended Counterclaim, SULLIVAN seeks damages for “money
due, extra costs for labor, equipment, materials, extended job site and home office overhead, and
loss of productivity and efficiency.” As detailed below, SULLIVAN’s claim for damages
through September 25, 2015 fails because SULLIVAN waived/released the right to claim the
alleged damages through its execution of a partial waiver and release of lien and claims in
exchange for each of its payments received during the course of the Project (the “Releases”’),
wherein SULLIVAN waived and relinquished any and all claims arising out of, relating to, or
connected with the Project through a specific date.
UNDISPUTED MATERIAL FACTS
1. CARR was the general contractor for the construction of an apartment community
known as Lakeview Residences Apartments located in Davie, Florida (“the Project”). (See
CARR’s Amended Complaint at § 8; SULLIVAN’s Amended Answer at { 8).
2. CARR and SULLIVAN entered into the Revised Subcontract attached to the
Amended Complaint wherein SULLIVAN would perform the utilities and site work portions of the
Project.! (See Richard K. Carr’s Affidavit at ] 4).
3. Whether the Revised Subcontract is deemed enforceable or not, during the Project,
SULLIVAN submitted Applications for Payment for work performed in accordance with the terms
and conditions of the Revised Subcontract. (See Richard K. Carr’s Affidavit at § 5).
' SULLIVAN has disputed in its pleadings and discovery the enforceability of the Revised Subcontract attached to
the Complaint. The enforceability of the Revised Subcontract is the subject of CARR’s pending Motion for Partial
Summary Judgment. Notwithstanding CARR’s assertion that the Revised Subcontract is the operative, binding
agreement between the parties relating to the Project, the effectiveness and enforceability of the Releases described
more fully herein are independently enforceable and binding upon SULLIVAN.
3
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-73434, As a condition precedent to each progress payment issued to SULLIVAN during the
Project, SULLIVAN executed Releases and provided same to CARR. (See Richard K. Carr’s
Affidavit at § 6 and Deposition Transcript of Sean Sullivan, the principal of SULLIVAN).
5. SULLIVAN was paid by CARR for ten (10) Applications for Payment in
accordance with the terms and conditions of the Revised Subcontract and pursuant to the Releases
executed and furnished by SULLIVAN. (See CARR’s Affidavit at 7 and Deposition Transcript of
Sean Sullivan).
6. SULLIVAN, by and through its principal, Sean Sullivan, and its project manager,
Tom Castano, who was authorized to execute Releases, executed Releases in exchange for each of
the payments SULLIVAN received from CARR. (See Richard K. Carr’s Affidavit at § 8 and
Deposition Transcript of Sean Sullivan).
7. Each of the Releases, in addition to releasing SULLIVAN’S lien rights through the
date of payment, states clearly that SULLIVAN “waives, releases, quits, remises, discharges, and
relinquishes any and all rights, claims, demands, liens, claims for relief, causes of action and the like
whether arising at law, under the Subcontract referenced above, in tort, in equity or otherwise . . .
against Contractor . . . [and] sureties . . . arising out of, relating to, or connected with, all facts, acts,
events, circumstances, changes, delays, accelerations, hindrances, inefficiencies, extra work,
disruptions, interferences and the like that have occurred, or that Subcontractor may claim to have
occurred, on the Project through the date of this Waiver and Release.” (See Richard K. Carr’s
Affidavit at § 8 and 9, and Deposition Transcript of Sean Sullivan).
8. In April 2015, SULLIVAN notified CARR that SULLIVAN’s subcontractor
EHLG, allegedly incurred additional costs for the removal of unsuitable material that allegedly
exceeded the scope of work included in either SULLIVAN’s or EHLG’s agreements, and
4
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343proposed that additional costs would be incurred to import material to replace the alleged
unsuitable material. (See Richard K. Carr’s Affidavit at {| 10; Deposition Transcript of Richard
K. Carr and Deposition Exhibit 49- Deposition Exhibit 49 includes EHLG’s Daily Time Sheets
for various days in the months of January, February and March 2015).
9. On November 4, 2015, SULLIVAN provided CARR with a packet of documents
that allegedly included documents that supported a claim for extra costs incurred by EHLG for
the removal of unsuitable material and import of replacement material. The documentation
included in Deposition Exhibit 48, which allegedly supports the pass-through claim of EHLG,
with the exception of one Daily Time Sheet dated June 25, 2015, includes the same EHLG Daily
Time Sheets for various days in the months of January, February and March 2015 that are
included in Deposition Exhibit 49. Additionally, the documentation included in Deposition
Exhibit 48 include trucking tickets for materials allegedly brought to the project during the
months of June, July, August and September 2015. (See Richard K. Carr’s Affidavit § 11;
Deposition Transcript of Richard K. Carr and Deposition Exhibit 48).
10. The Releases provided by SULLIVAN to CARR waive and release all claims as
identified in paragraph 7 above beginning in January 2015 through September 25, 2015.
Additionally, each of the Releases provided SULLIVAN the opportunity to preserve its right to
pursue any pending claims by identifying and listing them in paragraph 3 of the Release. (See
Richard K. Carr’s Affidavit at | 12; Deposition Transcript of Sean Sullivan and Deposition
Exhibit Nos. 58, 59, 60, 61, 62, 63, and 64).
11. None of the Releases provided by SULLIVAN to CARR (Deposition Exhibit
Nos. 58, 59, 60, 61, 62, 63, and 64), including the last Release which was through September 25,
2015, identified any claims, including but not limited to “money due, extra costs for labor,
5
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343equipment, materials, extended job site and home office overhead, and loss of productivity and
efficiency,” as being preserved or excepted out of the Releases, which are the damages
SULLIVAN now seeks on behalf of EHLG in its Amended Counterclaim. (See Richard K.
Carr’s Affidavit at § 13).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R.
Civ. P. Rule 1.510(c); Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126, 130 (Fla.
2000); Int’l Christian Fellowship Inc. v. Vinh on Prop. Inc., 954 So. 2d 1214, 1215 (Fla. 4th
DCA 2007). Summary judgment should be granted if the movant shows conclusively the
complete absence of any genuine issues of material fact, Lane v. Cold, 882 So. 2d 436, 438 (Fla.
Ist DCA 2004), and the opposing party is unable to present any evidence to reveal a genuine
issue. Grasspoole v. Konover Constr. Corp. S., 787 So. 2d 937 (Fla. 4th DCA 2001). Merely
asserting that an issue of material fact exists is insufficient. /d.
ARGUMENT
Florida law enforces partial waivers given in exchange for progress payments. See
Spectrum Interiors, Inc. v. Exterior Walls, Inc., 2 So. 3d 1093, 1095 (Fla. 5th DCA 2009); Frank
Maio General Contractor, Inc. v. Consol. Elec. Supply, Inc., 452 So. 2d 1092, 1093 (Fla. 4th
DCA 1984). “The language in a release is the best evidence of the parties’ intent and when that
language is clear and unambiguous, the courts cannot indulge in construction or interpretation of
its plain meaning.” Spectrum Interiors, Inc., 2 So. 3d at 1095 (citing Vermut v. General Motors
Corp., Inc., Cadillac Div., 773 So.2d 126 (Fla. 4th DCA 2000)); Frank Maio General
6
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343Contractor, Inc., 452 So, 2d at 1093 (“[A] court may not indulge in ‘construction’ of a release
that is clear and unambiguous on its face.”).
In Spectrum Interiors, Inc., a subcontractor and sub-subcontractor entered into a sub-
subcontract, whereby the sub-subcontractor had agreed to perform a portion of the
subcontractor’s scope of work on a construction project. Spectrum Interiors, Inc., 2 So. 3d at
1094. The sub-subcontractor sued the subcontractor for breach of contract and quantum meruit.
Id. However, the sub-subcontractor had executed numerous partial waivers of lien and release of
claim documents, in which it represented that it had been paid in full all amounts due and owing
to it through September 30, 2003. Jd. The documents contained language nearly identical to the
language in the Releases in this litigation.? See id. Notwithstanding the waivers and releases,
the jury returned a verdict in favor of the sub-subcontractor. Jd. at 1095. The subcontractor
appealed and argued that the final judgment should be reversed because the sub-subcontractor
lacked the legal right to seek recovery of any damages prior to September 30, 2003, because
pursuant to the waivers and releases of lien, it had waived and released assigned and assigned all
? Furnisher [defined as EWI] hereby represents, warrants, and acknowledges to Contractor that unless specifically
noted below, Furnisher has been paid in full all amounts due and owed to it by Subcontractor as of September 30,
2003 arising out of or in connection with its furnishing of materials, equipment, services, or labor in connection with
Subcontractor's work on the Project.
Exceptions as follows:
(If no exception entry or Anyone@[sic] is entered above, Furnisher shall be deemed not to have reserved any claim)
[no exceptions were noted by EWI]
nae
Except as specifically noted above, Furnisher does hereby waive, release, and relinquish any and all claims,
damages, losses, expenses, and the like whether arising at law, under a contract, in tort, in equity or otherwise,
which Furnisher has now, or may have had, against Contractor, Owner, or Owner's property arising out of its
furnishing of materials, equipment, services, or labor to Subcontractor in connection with the Project through the
Current Date
7
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
ine (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343
Mainclaims to the general contractor. Jd. The appellate court agreed and found that the sub-
subcontractor clearly and unambiguously assigned to the general contractor any claims it might
have had against the subcontractor, and therefore, was not entitled to recover any damages from
the subcontractor which occurred prior to September 30, 2003. Id.
Each of the Releases executed by SULLIVAN and provided to CARR state in pertinent
part as follows:
3. Additionally, Subcontractor, for and in consideration of the receipt of the Progress Payment Due, the receipt
of which is hereby acknowledged, hereby irrevocably waives, releases, quits, remises, discharges and
relinquishes any and all rights, claims, demands, liens, claims for relief, causes of action and the like,
whether arising at law, under the Subcontract referenced above, in tort, in equity or otherwise, which
Subcontractor or its successors and/or assigns had, have, or may have, against Contractor, Owner, Owner's
lenders and their members, shareholders, pariners, affiliates, members, sureties, insurers, agents, directors,
officers, employees, representatives, successors and assigns, any and all title companies which may now or
hereafter insure the title to the Land, any future owner of the Land and any other person claiming any interest
in the Land by, through or under Owner (collectively, the “Released Parties”) arising out of, relating to, or
connected with, all facts, acts, events, circumstances, changes, delays, accelerations, hindrances,
inefficiencies, extra work, disruptions, interferences and the like that have occurred, or that Subcontractor
may claim to have occurred, on the Project through the date of this Waiver and Release; provided, however,
that this Waiver and Release does not apply to Retainage, or labor, services or materials furnished by
Subcontractor after the date specified in paragraph 2 above, and the claims by Subcontractor that are
specifically listed below:
None
See Deposition Exhibit Nos. 58, 59, 60, 61, 62, 63, and 64.
SULLIVAN’s execution and furnishing of the Releases to CARR represents it has been
paid through September 25, 2015, and pursuant to the language set forth above, waives and
releases any and all claims for the damages sought in the Amended Counterclaim through that
date. Therefore, any damages claimed, including but not limited to extra work, for the periods
prior to September 25, 2015 are waived, released and barred by the Releases, and the Releases,
$ Unlike the Releases in the instant matter, the waivers and releases in Spectrum included a waiver and release of all
claims against the contractor and owner and an assignment to the contractor of all claims the sub-subcontractor
might have against subcontractor through the effective date of the release. The distinction is of limited consequence
as the language is nearly identical and similarly manifests an unequivocal relinquishment of claims.
8
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343by their own clear and unambiguous terms, released all claims for labor, services, and materials
furnished preceding the date included in the Release. More specifically, the title of the Releases
includes the term “Claims,” paragraph 3 specifically states that SULLIVAN waives and releases
“any and all” claims arising out of, relating to, or connected with “extra work,” and SULLIVAN
clearly states “None” for claims that are excepted from the Releases. As in Spectrum Interiors,
Inc., any attempt by SULLIVAN to seek recovery of costs allegedly associated with the
performance of extra work during the periods covered by the Releases it furnished would be an
attempt to rewrite the terms of the Releases by claiming damages for which it clearly and
unambiguously discharged CARR.
Further, SULLIVAN never manifested any intention to preserve any of its claims under
the Releases. In fact, SULLIVAN failed to note a single claim to be excepted from the Releases.
Thus, by failing to identify any claims, SULLIVAN unquestionably released its claims for “extra
work,” under the plain terms of the Releases. In Bell BC Co. v. U.S., the Federal Circuit held
that the language of the release, similar to the one at issue here, unambiguously released the
government from “any and all” liability, including claims for delays, stating “[i]f the parties
intend to leave some things open and unsettled their intent so to do should be made manifest.”
Bell BC Co. v. U.S., 570 F.3d 1337, 1341-42 (Fed. Cir. 2009) (quoting United States v. William
Cramp & Sons Ship & Engine Building Co., 206 U.S. 118, 128 (1907)).
Substantially similar releases have been enforced by courts throughout Florida. In Hold v.
Manzini, the Third District Court of Appeal found similar release terms “clear and
unambiguous”. The release language in that case similarly stated “I HEREBY remise, release,
acquit, satisfy, and forever discharge the said second party, of and from all, and all manner of
action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts,
9
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law
or in equity, which said first party ever had, now has . . . against said second party, for, upon or
by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of
these presents.” Hold v. Manzini, 736 So. 2d 138, 140 (Fla. 3d DCA 1999); See also Frank Maio
General Contractor, Inc., 452 So. 2d at 1093 (enforcing “unambiguous terms of a release”).
Jurisdictions across the country have made similar rulings. For instance, in Kay-R
Electric Corp. v. Stone & Webster Constr. Co., 23 F.3d 55, 58-59 (2d Cir. 1994), the court found
a similar progress payment release to be “clear and unambiguous” and enforceable according to
its terms. The court held that the “plain language of the requisition form releases any and all
claims not expressly reserved.” Likewise, in G.R. Sponaugle & Sons, Inc. v. Hunt Contr. Group,
Inc., the Middle District of Pennsylvania granted a motion for summary judgment under the
terms of a substantively identical release. G.R. Sponaugle & Sons, Inc. v. Hunt Contr. Group,
Inc., 366 F. Supp.2d 236, 241-43 (M.D. Penn. 2004). In G.R. Sponaugle & Sons, Inc., the court
held that a “party cannot evade the clear language of a release by contending that the party did
not subjectively intend to release the claim at issue.” Jd. at 242-43. The court held that the
operative release was “plain, clear and unambiguous and waives any and all claims arising out of
work performed on the project before the date of the particular payment application.” Jd. at 243.
Such interpretations are consistently given to progress payment releases substantively identical
to the one at issue here. See /d.; Galin Corp. v. MCI Telecommunications Corp., 12 F.3d 465,
468-69 (Sth Cir. 1994) (holding that nine releases signed by construction contractors in exchange
for incremental payments reached all claims of contractors against owner that existed at time
contractors signed each release).
10
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343Based on the foregoing, there is no ambiguity in the language contained in each of the
Releases. The Releases are clear and unambiguous as to what was released and when, and who
was released. Specifically, any claim for damages through September 25, 2015 has been
released and, as a result, SULLIVAN’s claims for damages against CARR and SURETY through
September 25, 2015, and more specifically the pass-through claims of EHLG which allegedly
arose during the months of January 2015 through September 2015, fail as a matter of law.
CONCLUSION
In conclusion, CARR and SURETY are entitled to summary judgment with regard to any
damages through September 25, 2015. The Releases clearly and unambiguously established that
SULLIVAN released any and all claims with regard to any damages through September 25,
2015. Accordingly, CARR and SURETY respectfully request the Court enter an order granting
their Motion for Partial Summary Judgment, and such other relief as the Court deems just and
proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing has been filed with E-
Portal and that E-Portal, via email, will furnish a true and correct copy of the foregoing to the
following on this 19" day of September, 2017 to: Joseph W. Lawrence, II, Esq., Vezina,
Lawrence & Piscitelli, P.A., The Museum Building, 300 SW First Avenue, Suite 150, Fort
Lauderdale, Florida 33301, jlawrence@vlplaw.com and jfrometa@viplaw.com,
FERENCIK LIBANOFF BRANDT BUSTAMANTE
& GOLDSTEIN, P.A.
Attorneys for Carr Builders LLC and Liberty Mutual
Insurance Company
150 South Pine Island Road, Suite 400
Fort Lauderdale, Florida 33324
Tel (954) 474-8080
Fax (954) 474-7343
Miami-Dade (305) 949-8003
11
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343By: s/Ira Libanoff
IRA L. LIBANOFF
Florida Bar No. 378429
ilibanoff@flblawyers.com
JORDAN NADEL
Florida Bar No. 99582
jnadel(@fblawyers.com
noutar@flblawyers.com
12
Ferencik Libanoff Brandt Bustamante And Goldstein, P.A.
150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324
Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343
Preview
Filing # 62021259 E-Filed 09/26/2017 03:42:15 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE-16-008390 CARR BUILDERS LLC, a Florida limited liability company, Plaintiff, vs. SULLIVAN BROS., LLC, a Florida limited liability company, and SULLIVAN BROS CONSTRUCTION, LLC, a Florida limited liability company, Defendants. / SSR EEE CARR BUILDERS, LLC AND LIBERTY MUTUAL INSURANCE COMPANY’S, MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO SULLIVAN’S DAMAGES THROUGH SEPTEMBER 25, 2015 Plaintiff/Counter-Defendant, CARR BUILDERS, LLC (“CARR”) and Counter- Defendant, LIBERTY MUTUAL INSURANCE COMPANY (“SURETY”), by and through their undersigned counsel, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, move this Honorable Court for entry of partial summary judgment against Defendant/Counter-Plaintiff, SULLIVAN BROS CONSTRUCTION, LLC (“SULLIVAN”), for any damages it seeks in its Amended Counterclaim through September 25, 2015. As grounds for this Motion, CARR and SURETY state that the pleadings together with the attached affidavit of Richard K. Carr and Deposition transcripts of Sean Sullivan and Richard K. Carr demonstrate that there are no genuine issues of material fact relating to SULLIVAN’s release of all damages in its Amended Counterclaim through September 25, 2015, and CARR and SURETY are entitled to summary Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343, *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 9/26/2017 3:42:14 PM.****judgment as a matter of law. The undisputed facts upon which this Motion is based and the substantial matters of law to be argued in support of this Motion are set forth below. INTRODUCTION This lawsuit arises out of SULLIVAN’s failure to perform its obligations under a subcontract it had with CARR to perform the utilities and site work construction of a rental apartment community on which CARR was the general contractor. On or about May 6, 2016, CARR initiated this action against SULLIVAN because SULLIVAN failed to perform its work in accordance with the Revised Subcontract, failed to perform its work in a timely manner, failed to pay its subcontractors and suppliers thereby requiring CARR to issue payment to avoid and satisfy lien claims, and failed to complete the work required by the Subcontract thereby requiring CARR to retain replacement subcontractors to complete the work. In turn, SULLIVAN has asserted a Counterclaim which sets forth the following four counts against CARR and/or SURETY: 1) Breach of Contract against CARR; 2) Quantum Meruit against CARR; 3) Unjust Enrichment against CARR; and 4) Action on Payment Bond against CARR and SURETY. The most significant portion of SULLIVAN’s Amended Counterclaim is comprised of claims for payment for extra work allegedly performed by SULLIVAN’s subcontractor, The Eddie Huggins Land Grading Co., LLC (“EHLG”), which SULLIVAN is pursuing pursuant to a Liquidation Agreement (Pass-Through Agreement) that it entered into with EHLG. Not so coincidentally, the most significant portions of the work that SULLIVAN failed to perform in accordance with the Revised Subcontract (failed to perform in a timely manner, failed to pay subcontractors and suppliers for, and failed to complete), is work that was included in the scope of the sub-subcontract agreement between SULLIVAN and EHLG. 2 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343CARR and SURETY move for the entry of partial summary judgment relating to SULLIVAN’s damages in its Amended Counterclaim through September 25, 2015. In Counts I through IV of SULLIVAN’s Amended Counterclaim, SULLIVAN seeks damages for “money due, extra costs for labor, equipment, materials, extended job site and home office overhead, and loss of productivity and efficiency.” As detailed below, SULLIVAN’s claim for damages through September 25, 2015 fails because SULLIVAN waived/released the right to claim the alleged damages through its execution of a partial waiver and release of lien and claims in exchange for each of its payments received during the course of the Project (the “Releases”’), wherein SULLIVAN waived and relinquished any and all claims arising out of, relating to, or connected with the Project through a specific date. UNDISPUTED MATERIAL FACTS 1. CARR was the general contractor for the construction of an apartment community known as Lakeview Residences Apartments located in Davie, Florida (“the Project”). (See CARR’s Amended Complaint at § 8; SULLIVAN’s Amended Answer at { 8). 2. CARR and SULLIVAN entered into the Revised Subcontract attached to the Amended Complaint wherein SULLIVAN would perform the utilities and site work portions of the Project.! (See Richard K. Carr’s Affidavit at ] 4). 3. Whether the Revised Subcontract is deemed enforceable or not, during the Project, SULLIVAN submitted Applications for Payment for work performed in accordance with the terms and conditions of the Revised Subcontract. (See Richard K. Carr’s Affidavit at § 5). ' SULLIVAN has disputed in its pleadings and discovery the enforceability of the Revised Subcontract attached to the Complaint. The enforceability of the Revised Subcontract is the subject of CARR’s pending Motion for Partial Summary Judgment. Notwithstanding CARR’s assertion that the Revised Subcontract is the operative, binding agreement between the parties relating to the Project, the effectiveness and enforceability of the Releases described more fully herein are independently enforceable and binding upon SULLIVAN. 3 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-73434, As a condition precedent to each progress payment issued to SULLIVAN during the Project, SULLIVAN executed Releases and provided same to CARR. (See Richard K. Carr’s Affidavit at § 6 and Deposition Transcript of Sean Sullivan, the principal of SULLIVAN). 5. SULLIVAN was paid by CARR for ten (10) Applications for Payment in accordance with the terms and conditions of the Revised Subcontract and pursuant to the Releases executed and furnished by SULLIVAN. (See CARR’s Affidavit at 7 and Deposition Transcript of Sean Sullivan). 6. SULLIVAN, by and through its principal, Sean Sullivan, and its project manager, Tom Castano, who was authorized to execute Releases, executed Releases in exchange for each of the payments SULLIVAN received from CARR. (See Richard K. Carr’s Affidavit at § 8 and Deposition Transcript of Sean Sullivan). 7. Each of the Releases, in addition to releasing SULLIVAN’S lien rights through the date of payment, states clearly that SULLIVAN “waives, releases, quits, remises, discharges, and relinquishes any and all rights, claims, demands, liens, claims for relief, causes of action and the like whether arising at law, under the Subcontract referenced above, in tort, in equity or otherwise . . . against Contractor . . . [and] sureties . . . arising out of, relating to, or connected with, all facts, acts, events, circumstances, changes, delays, accelerations, hindrances, inefficiencies, extra work, disruptions, interferences and the like that have occurred, or that Subcontractor may claim to have occurred, on the Project through the date of this Waiver and Release.” (See Richard K. Carr’s Affidavit at § 8 and 9, and Deposition Transcript of Sean Sullivan). 8. In April 2015, SULLIVAN notified CARR that SULLIVAN’s subcontractor EHLG, allegedly incurred additional costs for the removal of unsuitable material that allegedly exceeded the scope of work included in either SULLIVAN’s or EHLG’s agreements, and 4 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343proposed that additional costs would be incurred to import material to replace the alleged unsuitable material. (See Richard K. Carr’s Affidavit at {| 10; Deposition Transcript of Richard K. Carr and Deposition Exhibit 49- Deposition Exhibit 49 includes EHLG’s Daily Time Sheets for various days in the months of January, February and March 2015). 9. On November 4, 2015, SULLIVAN provided CARR with a packet of documents that allegedly included documents that supported a claim for extra costs incurred by EHLG for the removal of unsuitable material and import of replacement material. The documentation included in Deposition Exhibit 48, which allegedly supports the pass-through claim of EHLG, with the exception of one Daily Time Sheet dated June 25, 2015, includes the same EHLG Daily Time Sheets for various days in the months of January, February and March 2015 that are included in Deposition Exhibit 49. Additionally, the documentation included in Deposition Exhibit 48 include trucking tickets for materials allegedly brought to the project during the months of June, July, August and September 2015. (See Richard K. Carr’s Affidavit § 11; Deposition Transcript of Richard K. Carr and Deposition Exhibit 48). 10. The Releases provided by SULLIVAN to CARR waive and release all claims as identified in paragraph 7 above beginning in January 2015 through September 25, 2015. Additionally, each of the Releases provided SULLIVAN the opportunity to preserve its right to pursue any pending claims by identifying and listing them in paragraph 3 of the Release. (See Richard K. Carr’s Affidavit at | 12; Deposition Transcript of Sean Sullivan and Deposition Exhibit Nos. 58, 59, 60, 61, 62, 63, and 64). 11. None of the Releases provided by SULLIVAN to CARR (Deposition Exhibit Nos. 58, 59, 60, 61, 62, 63, and 64), including the last Release which was through September 25, 2015, identified any claims, including but not limited to “money due, extra costs for labor, 5 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343equipment, materials, extended job site and home office overhead, and loss of productivity and efficiency,” as being preserved or excepted out of the Releases, which are the damages SULLIVAN now seeks on behalf of EHLG in its Amended Counterclaim. (See Richard K. Carr’s Affidavit at § 13). SUMMARY JUDGMENT STANDARD Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. Rule 1.510(c); Volusia County v. Aberdeen at Ormond Beach, 760 So. 2d 126, 130 (Fla. 2000); Int’l Christian Fellowship Inc. v. Vinh on Prop. Inc., 954 So. 2d 1214, 1215 (Fla. 4th DCA 2007). Summary judgment should be granted if the movant shows conclusively the complete absence of any genuine issues of material fact, Lane v. Cold, 882 So. 2d 436, 438 (Fla. Ist DCA 2004), and the opposing party is unable to present any evidence to reveal a genuine issue. Grasspoole v. Konover Constr. Corp. S., 787 So. 2d 937 (Fla. 4th DCA 2001). Merely asserting that an issue of material fact exists is insufficient. /d. ARGUMENT Florida law enforces partial waivers given in exchange for progress payments. See Spectrum Interiors, Inc. v. Exterior Walls, Inc., 2 So. 3d 1093, 1095 (Fla. 5th DCA 2009); Frank Maio General Contractor, Inc. v. Consol. Elec. Supply, Inc., 452 So. 2d 1092, 1093 (Fla. 4th DCA 1984). “The language in a release is the best evidence of the parties’ intent and when that language is clear and unambiguous, the courts cannot indulge in construction or interpretation of its plain meaning.” Spectrum Interiors, Inc., 2 So. 3d at 1095 (citing Vermut v. General Motors Corp., Inc., Cadillac Div., 773 So.2d 126 (Fla. 4th DCA 2000)); Frank Maio General 6 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343Contractor, Inc., 452 So, 2d at 1093 (“[A] court may not indulge in ‘construction’ of a release that is clear and unambiguous on its face.”). In Spectrum Interiors, Inc., a subcontractor and sub-subcontractor entered into a sub- subcontract, whereby the sub-subcontractor had agreed to perform a portion of the subcontractor’s scope of work on a construction project. Spectrum Interiors, Inc., 2 So. 3d at 1094. The sub-subcontractor sued the subcontractor for breach of contract and quantum meruit. Id. However, the sub-subcontractor had executed numerous partial waivers of lien and release of claim documents, in which it represented that it had been paid in full all amounts due and owing to it through September 30, 2003. Jd. The documents contained language nearly identical to the language in the Releases in this litigation.? See id. Notwithstanding the waivers and releases, the jury returned a verdict in favor of the sub-subcontractor. Jd. at 1095. The subcontractor appealed and argued that the final judgment should be reversed because the sub-subcontractor lacked the legal right to seek recovery of any damages prior to September 30, 2003, because pursuant to the waivers and releases of lien, it had waived and released assigned and assigned all ? Furnisher [defined as EWI] hereby represents, warrants, and acknowledges to Contractor that unless specifically noted below, Furnisher has been paid in full all amounts due and owed to it by Subcontractor as of September 30, 2003 arising out of or in connection with its furnishing of materials, equipment, services, or labor in connection with Subcontractor's work on the Project. Exceptions as follows: (If no exception entry or Anyone@[sic] is entered above, Furnisher shall be deemed not to have reserved any claim) [no exceptions were noted by EWI] nae Except as specifically noted above, Furnisher does hereby waive, release, and relinquish any and all claims, damages, losses, expenses, and the like whether arising at law, under a contract, in tort, in equity or otherwise, which Furnisher has now, or may have had, against Contractor, Owner, or Owner's property arising out of its furnishing of materials, equipment, services, or labor to Subcontractor in connection with the Project through the Current Date 7 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 ine (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343 Mainclaims to the general contractor. Jd. The appellate court agreed and found that the sub- subcontractor clearly and unambiguously assigned to the general contractor any claims it might have had against the subcontractor, and therefore, was not entitled to recover any damages from the subcontractor which occurred prior to September 30, 2003. Id. Each of the Releases executed by SULLIVAN and provided to CARR state in pertinent part as follows: 3. Additionally, Subcontractor, for and in consideration of the receipt of the Progress Payment Due, the receipt of which is hereby acknowledged, hereby irrevocably waives, releases, quits, remises, discharges and relinquishes any and all rights, claims, demands, liens, claims for relief, causes of action and the like, whether arising at law, under the Subcontract referenced above, in tort, in equity or otherwise, which Subcontractor or its successors and/or assigns had, have, or may have, against Contractor, Owner, Owner's lenders and their members, shareholders, pariners, affiliates, members, sureties, insurers, agents, directors, officers, employees, representatives, successors and assigns, any and all title companies which may now or hereafter insure the title to the Land, any future owner of the Land and any other person claiming any interest in the Land by, through or under Owner (collectively, the “Released Parties”) arising out of, relating to, or connected with, all facts, acts, events, circumstances, changes, delays, accelerations, hindrances, inefficiencies, extra work, disruptions, interferences and the like that have occurred, or that Subcontractor may claim to have occurred, on the Project through the date of this Waiver and Release; provided, however, that this Waiver and Release does not apply to Retainage, or labor, services or materials furnished by Subcontractor after the date specified in paragraph 2 above, and the claims by Subcontractor that are specifically listed below: None See Deposition Exhibit Nos. 58, 59, 60, 61, 62, 63, and 64. SULLIVAN’s execution and furnishing of the Releases to CARR represents it has been paid through September 25, 2015, and pursuant to the language set forth above, waives and releases any and all claims for the damages sought in the Amended Counterclaim through that date. Therefore, any damages claimed, including but not limited to extra work, for the periods prior to September 25, 2015 are waived, released and barred by the Releases, and the Releases, $ Unlike the Releases in the instant matter, the waivers and releases in Spectrum included a waiver and release of all claims against the contractor and owner and an assignment to the contractor of all claims the sub-subcontractor might have against subcontractor through the effective date of the release. The distinction is of limited consequence as the language is nearly identical and similarly manifests an unequivocal relinquishment of claims. 8 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343by their own clear and unambiguous terms, released all claims for labor, services, and materials furnished preceding the date included in the Release. More specifically, the title of the Releases includes the term “Claims,” paragraph 3 specifically states that SULLIVAN waives and releases “any and all” claims arising out of, relating to, or connected with “extra work,” and SULLIVAN clearly states “None” for claims that are excepted from the Releases. As in Spectrum Interiors, Inc., any attempt by SULLIVAN to seek recovery of costs allegedly associated with the performance of extra work during the periods covered by the Releases it furnished would be an attempt to rewrite the terms of the Releases by claiming damages for which it clearly and unambiguously discharged CARR. Further, SULLIVAN never manifested any intention to preserve any of its claims under the Releases. In fact, SULLIVAN failed to note a single claim to be excepted from the Releases. Thus, by failing to identify any claims, SULLIVAN unquestionably released its claims for “extra work,” under the plain terms of the Releases. In Bell BC Co. v. U.S., the Federal Circuit held that the language of the release, similar to the one at issue here, unambiguously released the government from “any and all” liability, including claims for delays, stating “[i]f the parties intend to leave some things open and unsettled their intent so to do should be made manifest.” Bell BC Co. v. U.S., 570 F.3d 1337, 1341-42 (Fed. Cir. 2009) (quoting United States v. William Cramp & Sons Ship & Engine Building Co., 206 U.S. 118, 128 (1907)). Substantially similar releases have been enforced by courts throughout Florida. In Hold v. Manzini, the Third District Court of Appeal found similar release terms “clear and unambiguous”. The release language in that case similarly stated “I HEREBY remise, release, acquit, satisfy, and forever discharge the said second party, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, 9 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first party ever had, now has . . . against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.” Hold v. Manzini, 736 So. 2d 138, 140 (Fla. 3d DCA 1999); See also Frank Maio General Contractor, Inc., 452 So. 2d at 1093 (enforcing “unambiguous terms of a release”). Jurisdictions across the country have made similar rulings. For instance, in Kay-R Electric Corp. v. Stone & Webster Constr. Co., 23 F.3d 55, 58-59 (2d Cir. 1994), the court found a similar progress payment release to be “clear and unambiguous” and enforceable according to its terms. The court held that the “plain language of the requisition form releases any and all claims not expressly reserved.” Likewise, in G.R. Sponaugle & Sons, Inc. v. Hunt Contr. Group, Inc., the Middle District of Pennsylvania granted a motion for summary judgment under the terms of a substantively identical release. G.R. Sponaugle & Sons, Inc. v. Hunt Contr. Group, Inc., 366 F. Supp.2d 236, 241-43 (M.D. Penn. 2004). In G.R. Sponaugle & Sons, Inc., the court held that a “party cannot evade the clear language of a release by contending that the party did not subjectively intend to release the claim at issue.” Jd. at 242-43. The court held that the operative release was “plain, clear and unambiguous and waives any and all claims arising out of work performed on the project before the date of the particular payment application.” Jd. at 243. Such interpretations are consistently given to progress payment releases substantively identical to the one at issue here. See /d.; Galin Corp. v. MCI Telecommunications Corp., 12 F.3d 465, 468-69 (Sth Cir. 1994) (holding that nine releases signed by construction contractors in exchange for incremental payments reached all claims of contractors against owner that existed at time contractors signed each release). 10 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343Based on the foregoing, there is no ambiguity in the language contained in each of the Releases. The Releases are clear and unambiguous as to what was released and when, and who was released. Specifically, any claim for damages through September 25, 2015 has been released and, as a result, SULLIVAN’s claims for damages against CARR and SURETY through September 25, 2015, and more specifically the pass-through claims of EHLG which allegedly arose during the months of January 2015 through September 2015, fail as a matter of law. CONCLUSION In conclusion, CARR and SURETY are entitled to summary judgment with regard to any damages through September 25, 2015. The Releases clearly and unambiguously established that SULLIVAN released any and all claims with regard to any damages through September 25, 2015. Accordingly, CARR and SURETY respectfully request the Court enter an order granting their Motion for Partial Summary Judgment, and such other relief as the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing has been filed with E- Portal and that E-Portal, via email, will furnish a true and correct copy of the foregoing to the following on this 19" day of September, 2017 to: Joseph W. Lawrence, II, Esq., Vezina, Lawrence & Piscitelli, P.A., The Museum Building, 300 SW First Avenue, Suite 150, Fort Lauderdale, Florida 33301, jlawrence@vlplaw.com and jfrometa@viplaw.com, FERENCIK LIBANOFF BRANDT BUSTAMANTE & GOLDSTEIN, P.A. Attorneys for Carr Builders LLC and Liberty Mutual Insurance Company 150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324 Tel (954) 474-8080 Fax (954) 474-7343 Miami-Dade (305) 949-8003 11 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343By: s/Ira Libanoff IRA L. LIBANOFF Florida Bar No. 378429 ilibanoff@flblawyers.com JORDAN NADEL Florida Bar No. 99582 jnadel(@fblawyers.com noutar@flblawyers.com 12 Ferencik Libanoff Brandt Bustamante And Goldstein, P.A. 150 S. Pine Island Road, Suite 400, Fort Lauderdale, Florida 33324 Main Line (954) 474-8080 Miami-Dade (305) 949-8003 Fax (954) 474-7343