FERGUSON ENTERPRISES INC

v.

TURNBERRY ON THE GREEN CONDO ASSN INC

03-18-‘I⁴ 10:13 CIRCUIT COURT OF THE A ELEVENTH IUDICIAL CIRCUIT, IN

AND

FOR

_AMIAM1—DADE

COUNTY, FLORIDA

.=. ¢-1 Q —_59Q‘~"l1A " -‘$9921 weanasam az fiwsas am as-as APPELLATE n1v1§1o1~1 fig — ' CASENUMBER: -~ ‘Fl’ -\ TRIAL CASE NUl\_‘§_1B bi _ 2012-010316 cc 0.; ‘Q ‘; FERGUSON ENTERPRISES, INC., -"" ¢;>_ . Appellant, K \ -MH WV § \3 \‘1 vs. W“ ' I

JUDGE

RN s.

MRO

TURNBERRY ON THE GREEN

.._.HI 7-“) \-F CONDOMINIUM ASSOCIATION, INC., ' - _ *- IUPITER FARMS PLUMBING 8:; IRRIGATION, INC., '" and RICHARD Appcllecs. @f;A;;,,§.,é p ‘ I €rm::¢:{:é;l@=¢ Egg: ads County, Florida, An appeal from a decision by the County Court in and for Miami-D Gladys Perez, Judge. all E ., for Appellant. Alexander E. Balthet, Esq. andPete1-B. Row , sq Gene D. Lipschcr, Esq., for Appcllcc. Hearing on: March 5, 2014. -- .i—.-—-----_-_-—---»_--7“ _-w-__.-¢---Page .1 .cj£\-sIi___..___-._._..--.._.I-.._.~-.. .4, .... . . . . .... .....__._-_.~__j [*2] - 5-’l⁴

Ferguson Enterprises, Inc. (Ferguson) is a material supplier who specializes in selling plumbing goods and materials to the construction industry. Ferguson is owned by Wolseley. Jupiter is a plumbing contractor who performed work at the construction project known as 'l‘urni)e1ry on the Green Condominium Association (the project). Riclrard M. Vicker (Vicker) is the president of Jupiter. Vickcr executed a credit application and personal guarantee with Ferguson in order to purchase products from Ferguson. Ferguson sold goods to Jupiter through a credit transaction. Ferguson sold and delivered the goods to Jupiter. However, Jupiter was not required to pay for the goods until approximately 30 days after the delivery of the goods. Ferguson gave invoices to Jupiter for each sale pursuant to the project. A total of 18 invoices were delivered from Ferguson to Jupiter. The parties entered into an agreement. The first page of the agreement lists a number of independent companies owned by Wolseley (set apart in a graphical box), including but not limited to Ferguson. The agreement specifically states that “{t]his Agreement is between the Wolseley company extending credit (“Seller”) and the Applicant named above on page (“Buyer").” Wolseley did not perform any part of the transaction or otherwise contract with Jupiter or Vicker. On or about May 17, 2012 Ferguson filed this lawsuit alleging two counts against the projects owner, Turnberry on the Green Condominium Association, Inc. for construction lien foreclosure and unjust enrichment for sums due and unpaid for rnaterials furnished. Thereafter, Ferguson filed an amended complaint which added Jupiter and Vicker which allege claims against them for breach of contract, goods sold and delivered, and an open account pursuant to so __._._~-.r.. ...___P5gé_ 2 bf 5__..__._._. __,._ _.___... .“.t...-.. ._.. _. ._......._.___ __W s__ [*3] __o.__ _o__M__-.._H_.._m..-___.n-....._-.o... .. . . “Page 3.6f.5 .. — 8-’l⁴ 10:14 After a hearing thereon, the trial court enteredan Order On Defendants’ Motion to Dismiss Second Amended Complaint, dismissing, with prejudice, Counts III (Breach of Written Contract against Jupiter and Vicker), Count VII (Reformation of Contract against Jupiter and Vicker), Counts IV (Goods Sold and Delii!e1'ed as to Vicker only), Count V (Open Account as to Vicker only), and Count VI (Breach ofVerbal Contract as to Vicker only). “Trial court judgments are entitled to a presumption of correctness, particularly where evidcnceis conflicting and there is sulistetitial evidence to support the trial comt’s findings and conclusions, and such findings will not be disturbed in absence of clear showing that trial court cornmitted error or evidence demonstrates judge’s conclusions were clearly erroneous.” Jordan v. Boisvert, 632 So. 2d 254, 256 (Fla. lst DOA 1994). Moreover, an appellate court must accept the facts to be those shown by the evidence most favorable to the prevailing party when the trial court makes no specific findings of fact in the final judgment of a non-jury case. New Nautical Coatings, Inc. v. Scoggin, 731 So, 2d 145,146 (Fla. 4th DCA 1999). C The interpretation of a contract is a question of law, reviewabie ate nova by an appellate court, which is not restricted from reaching a construction contrary to that of the trial court. Merlot Comma ‘us, Inc. v. Shalev, 340 So. 2d 446, 447 (Fla. 3d DCA 2003) (citing Florida Dep ‘t ofRev. v. McCltmg, 760 So. 2d 244, 246 (Fla. 3d DCA 2000)). See also Rocha v. Menrlorzca, 35 [*4] So. 3d 973, 976 (Fla. 3d DCA 2010) (the interpretation of the contract should be reviewed de nova). Further, “an ambiguous term in the contract is to be construed against the drafter.” City of Horrzesiearl v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). However, “the constntction-against-the draitcr principle ofcontract interpretation is a rule of last resort and is inapplicable when there is evidence of the parties’ intent at the time they entered into the contract.” DSL Inlernet Corp. v. TigerDirect, Ina, 907 So. 2d 1203, 1205 (Fla. 3d DCA 2005). “Perot evidence is admissible to determine the meaning of ambiguous tenns in a contract through the parties’ own statements and conduct.” Id. When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties’ intent. Royal Oak Landing Homeowner 's A.rs’n, Inc. v. Pellelier, 620 So. 2d 786, 788 (Fla. 4th DCA 1993); Knob‘ v. .RevoIut1onSof‘wore, Inca, 181 Ohio App. 3d 519, 2009 Ohio 1191, 909 N.E. 2d 702, 712 (Ohio Ct. App. 2009). “In construing the language of a contract, courts are to be miiidful that ‘the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.“ Taylor {Taylor v. Taylor, I S0. 3d 348 (Fla. lst DCA 2009)]. 1 So. 3d at 350 (quoting Dehssio v. Delnsio, 821 So. 2d 350, 353 (Fla. lst DCA 2002)). “Words and phrases are given their common and ordinary meanings absent specific contractual definitions.” Krmrr, 909 N.E. 2d at 712. “If a contract is reasonably susceptible ofmore than one meaning, then it is ambiguous and extrinsic evidence of reasonableness or intent can be employed.” Id; see Taylor, i So. 3d at 350 (stating that “a trial court should not admit porol evidence until it first determines that the terms of a contract are ambiguous”). Morley v. Wiedamann, 25 So. 3d 27, 29—30 (Fla. 2d DCA 2009). The trial coon found the pertinent terms in the parties contract ambiguous. This can be adduced from the wording used in paragraph 1 in the March ll, 2013 Order on Defendants Motion to Dismiss Second Amended Complaint (R. at 179). It reads: “[c}ounts III and VII of the Second Amended Complaint shall be and hereby are dismissed with prejudice against both defendants, Ihtpiter Forms Plumbing & Irrigation, Inc. and Richard Vicker. The Court comp-yes the contracting party in Plaintiffs Exhibit “D” to be Wolseley and not Ferguson Enterprises, Inc, as £1 matter of law.” (Emphasis added). _ ......-. _....__._w..._s.i.. .-__....____._..._....Pagé..4 bf 5 03—l8~’14 10:14 FR0li- F032 P0005 F-105 [*5] 03-18314 10:15 fR0kl- T-032 P0005 F" As noted by DSL Interrzet C0rp., 907 So. 2d at 1205, the construction against the drafter principle is obviated when there is evidence which can bring forward the patties intention while entering the contract. The trial court ignored the evidence ofthe parties’ contract, demonstrated by the 18 invoices that were sent between the parties for goods supplied. This is evidence of intent and conduct. The deposition evidence brought forth in the second amended complaint clearly showed that a sales and credit trallsaction was occurring between the parties, despite Vicker’s statements that he did not know, after signing the contract, exactly who he was contracting with concerning the personal guarantee. He knew he was signing a personal guarantee for the goods which were going to he delivered. Using the exact words of the contract, “[t}his Agreement is between the Wolseiey company extending credit (“seller”) . . .” (R. at 128), the trial court could Well have construed and interpreted the contract in two different ways; 1) The Wolseley company itself extended credit to the appellee, or 2) the particular Wolseley company who extended credit to the appellee. The instant contract is susceptible to more than one meaning and is ambiguous. Marley, 25 So. 3d at 30. The trial court correctly decided this and interpreted the meaning of the phrase. However, the trial court ignored all of the surrounding evidence in this action and settled upon the first interpretation. An examination of the words, conduct, and circumstances surrounding the contract should have led to the correct interpretation ofthe phrase to accomplish the purpose of the contract (the second one). Id. at 29. The trial court did not account for these. This was error. REVERSED and REMANDED for proceedings consistent with this opinion.

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL

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