An Inconsistent Position on Appeal

By Anonymous -
Sarasota Renaissance II v. Batson-Cook Company, Copper Carry and Associates, et. al, 38 Fla. L. Weekly D1279a, Case No. 2D11-5449, filed June 12, 2013: Contractor sued developer for breach of an oral "reconstruction" agreement for the costs to repair water intrusion damages to a condominium, as well as the performance bond surety, and the developer assigned to contractor its claims against the architect for faulty design on the expressed agreement that the assignment would not serve to release any of such claims. Contractor filed motion to amend its pleadings to assert the claims assigned to it pursuant to Florida Rule of Civil Procedure 1.260(c), which the trial court denied based on the argument that such amendment would be prejudicial to the architect, and granted the architect's motion to drop the developer from the suit by ruling that the damages claims of the developer had been released by the assignment. On appeal by the developer, the court held that the assignment did not operate to extinguish or release the developer's claims, but AFFIRMED the order to "drop" the developer as a party based on the developer's failure to object to that order and actually urging in favor of that order, thereby taking an inconsistent position on appeal while failing to preserve this issue for appeal.

(From RPPTL Subcommittee)


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

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