DIRK BERKMAN, APPELLANT,
v.
WALT FOLEY AND MARY FOLEY, APPELLEES
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A Florida appellate court reversed a summary judgment in a mechanics lien foreclosure case, holding that an individual plaintiff with a valid contractor's license could not be bound by a prior judgment against an unlicensed corporate entity, and that ambiguities in the contract regarding the contracting party's identity did not preclude the individual's lien claim.
The court held that: (1) res judicata does not bind an individual plaintiff who was not a party to the prior summary judgment against the corporation; (2) the amendment adding the individual plaintiff relates back to the commencement of the action, making the claim timely; and (3) the contract ambiguities are not fatal—they merely create questions about payment entitlement that do not preclude Berkman's lien claim where he is the only claimant for the completed work.
[1] A prior summary judgment against a corporate plaintiff is not res judicata against an individual plaintiff who possessed the requisite license but was not a party to the…
[2] An amendment to a complaint adding a party relates back to the commencement of the action if the new and former parties share an identity of interest that does not prejud…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The initial summary judgment against the corporate plaintiff, on the grounds that it was not a licensed contractor, was not res judicata against the individual plaintiff who did have the requisite license but was not named as a party at the time of the summary judgment.”
Establishes the core holding that a judgment against an unlicensed corporation does not bind an individually-licensed contractor who was not a party to the judgment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDirk Berkman and Designer Group entered into a contract with Walt and Mary Foley to build a structure. The contract contained inconsistencies regardin…
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FARMER, Judge.
We reverse the summary judgment in this mechanics lien foreclosure case upon the following conclusions:
1. The initial summary judgment against the corporate plaintiff, on the grounds that it was not a licensed contractor, was not res judicata against the individual plaintiff who did have the requisite license but was not named as a party at the time of the summary judgment.
2. The amendment to the complaint to add the individual plaintiff related back to the commencement of the action, so that the claim of the individual to foreclose the mechanics lien was not untimely. See Fla. R. Civ. P. 1.190(c); Cabot v. Clearwater Constr. Co., 89 So. 2d 662, 664 (Fla.1956); Kozich v. Shahady, 702 So. 2d 1289, 1291 (Fla. 4th DCA 1997) (addition of party relates back where new and former parties have identity of interest that does not prejudice opponent); Associated Television and Comm. Inc. v. Dutch Village Homes of Melbourne, Ltd., 347 So. 2d 746, 748 (Fla. 4th DCA 1977).
3. The contract is not fatally ambiguous as to the identity of the contracting party who would build the structure and who would thus be entitled to payment. Although the contracting party in question is stated on the first page of this form as “Dick Berkman/Designer Group”, who is identified as the “contractor,” the contract was signed on the last page for the “seller” by one “Sharon Kelly.”1 At the same time, the other contracting party is stated on the first page as “Walter or Mary Foley,” identified as “owner,” and their signature on the last page was made above a line for “buyer.” In spite of these inconsistencies the Foleys had no trouble making progress payments to “Designer Group” during construction even though they now contend a fatal ambiguity as to the final payment.
These inconsistencies in form merely create an ambiguity as to the person entitled to payment as between Berkman and Designer Group. Even if a summary judgment against Designer Group had not already removed the corporation from the issues in the case, parole evidence would be admissible to clear up that ambiguity if two or more parties were claiming the entitlement to payment. In this case, however, the only claim for payment is by Berkman and then only as to completed work. The lien affidavit was made and signed by Berkman who was therein identified as a corporate officer of Designer Group. Knowing that Designer Group was not a licensed contractor while Berkman was, the Foleys can hardly claim confusion, much less cancellation of the contract and thereby a windfall as to the unpaid but completed work. As Judge Schwartz said in Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA), cert. denied, 378 So. 2d 342 (Fla.1979), “the courts will not allow the practice of the ‘Catch-22’ or ‘gotcha!’ school of litigation to succeed.” See also Chatmon v. Woodard, 492 So. 2d 1115, 1116, n. 2 (Fla. 3d DCA 1986) (“We cannot accept a ‘gotcha’ type stratagem like this one.”).
REVERSED.
GUNTHER and KLEIN, JJ., concur. . It is not disputed that Sharon Kelly signed the contract as an agent on behalf of Berkman/De-signer Group. While the precise text and organization of a form contract may create triable issues as to whether a contract was executed in a representative capacity, Florida Medical Center v. McCoy, 657 So. 2d 1248, 1251 (Fla. 4th DCA 1995), here the issue is whether Berkman was the represented principal. The ambiguity is not fatal; it merely creates the necessity for proof.
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Grip Dev., Inc. v. Coldwell Banker Residential Real Est., Inc., 788 So. 2d 262 (Fla. 4th DCA 2000)…the motion: “based, inter alia, upon the legal reasoning and analysis set forth in Hanzelik v. Grottoli & Hudon Investment of America Inc., 687 So. 2d 1363 (Fla. 4th DCA 1997); Galuppi v. Viele, 232 So. 2d 408 (Fla. 4th DCA 1970); Berkman v. Foley, 709 So. 2d 628 (Fla. 4th DCA 1998); M-5 [*272] Communications Inc. v. ITA Telecommunications Inc., 708 So. 2d 1039 (Fla. 3rd DCA 1998).... [T]he spirit of the modern Rules of Civil Procedure is best served where as here procedural niceties which have no bearing up…
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Nelson v. State, 855 So. 2d 132 (Fla. 4th DCA 2003)…nd the case to the trial court to determine whether the trial transcript demonstrates that both offenses sentenced as consecutive were from a single criminal episode. MANDATE ISSUED. WARNER and SHAHOOD, JJ., concur. . See, e.g., Berkman v. Foley, 709 So. 2d 628, 629 (Fla. 4th DCA 1998) ("the courts will not allow the practice of the 'Catch-22' or 'gotcha!' school of litigation to succeed.”); M-5 Communications, Inc. v. ITA Telecomms., Inc., 708 So. 2d 1039, 1039 (Fla. 3d DCA 1998) (“reversal is also mandat…
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Anderson v. TBA P'ship, Ltd., 733 So. 2d 1032 (Fla. 2d DCA 1998)…r clients should be expected to read important legal documents, if courts are to promote trust and professionalism among lawyers, we should not automatically enforce the type of “gotcha” release involved in this case. See generally Berkman v. Foley, 709 So. 2d 628 (Fla. 4th DCA 1998); 81 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979). Scott Anderson was employed by Tampa Bay Academy from…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)
- Cabot v. Clearwater Constr. Co., 89 So. 2d 662 (Fla. 1956)
- Kozich v. Shahady, 702 So. 2d 1289 (Fla. 4th DCA 1997)
- Fla. Med. Ctr., Inc. v. McCOY, 657 So. 2d 1248 (Fla. 4th DCA 1995)
- Ernestine Chatmon v. Milford Woodard, 492 So. 2d 1115 (Fla. 3d DCA 1986)
- Brown v. State, 347 So. 2d 746 (Fla. 4th DCA 1977)
- Associated Television & Commc'ns, Inc. v. Dutch Vill. Mobile Homes OF Melbourne, Ltd., 347 So. 2d 746 (Fla. 4th DCA 1977)