MIA TORRANCE, a/k/a MAI TORRANCE, Plaintiff/Counter-Defendant, v. AMERICAN COMMERCIAL CONSTRUCTION & DEVELOPMENT, INC., Defendant/Counter-Plaintiff. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 22-003685-CI. December 9, 2024. Thomas Ramsberger, Judge. Counsel: Peter Andrews, Law Office of Peter Andrews, Saint Petersburg, for Plaintiff/Counter-Defendant. Jason Lambert, Hill Ward Henderson, Tampa, for Defendant/Counter-Plaintiff.
ORDER GRANTING IN PART AND DENYING IN PARTAMERICAN COMMERCIAL CONSTRUCTION& DEVELOPMENT, INC’S MOTION TO DISMISSMAI TORRANCE’S CLAIMS AND DEFENSES DUE TOSPOLIATION OF EVIDENCE AND FOR ENTRY OF DEFAULT
THIS CAUSE came before the Court on Defendant/Counter-Plaintiff, American Commercial Construction & Development, Inc.’s, (“ACCD”) Motion to Dismiss Mai Torrance’s Claims and Defenses Due to Spoliation of Evidence and for Entry of Default (“Motion”) and the Court, having reviewed the Motion, the evidence in support of the Motion, the Court file, and having heard the argument of counsel and being otherwise advised in the premises, the Court hereby finds as follows:Background
1. This lawsuit arises from ACCD’s installation of a new roof at Ms. Torrance’s home, her subsequent claims of deficient workmanship, and ACCD’s recording of a construction lien against the home.
2. On August 8, 2022, Ms. Torrance filed her Amended Complaint in this lawsuit, alleging the following: (1) a claim for breach of contract/fraud that sought damages for an allegedly deficiently installed roof, (2) a claim for slander of title that sought damages as a result of the claimed slander, and (3) a claim seeking damages as a result of an allegedly fraudulent lien recorded against her home by ACCD.
3. The underlying basis for Ms. Torrance’s claims are that the roof installed by ACCD was somehow deficient, as reflected in both the allegations of her amended complaint, and her deposition testimony, as follows:
a. Alleging that ACCD failed to comply with the building code in constructing the roof. Am. Compl. ¶ 7(B)
b. Negligently supervising the work, including not replacing all existing shingles, replacing plumbing vents, installing roofing to sidewalls, and inspecting and resealing the existing step flashing. Am. Compl. ¶ 7(C)
c. Failing to install a vent system in the roof. Am. Compl. ¶ 7(D)
d. Improperly overlaying underlayment, not properly sealing it, uneven blue lines on the edge of the black underlayment, sloppy and uneven application of asphalt, poorly sealed asphalt, shingles installed over old debris, shingles installed were bumpy, sloppy, uneven, and poorly sealed, holes and gaps in flat roof area holding water, flat roof’s membrane does not reach the exterior wall. Am. Compl. ¶ 7(E).
e. The roof installation was a big mess and a big commotion. Torrance Tr. at 19:23-25
f. Underlayment not installed smoothly. Torrance Tr. at 20:1-2.
g. The completed roof was “not right.” Torrance Tr. at 21:9.
h. The flat roof membrane does not match up to the exterior wall on the roof. Torrance Tr. at 21:13-14.
i. There was a hole in the completed roof. Torrance Tr. at 27:11-16.
j. The whole roof was a big mess. Torrance Tr. at 28:7-9, 11-20.
4. In response, ACCD filed a counterclaim, alleging (1) breach of contract by Ms. Torrance, (2) alternative counts of unjust enrichment and quantum meruit, and (3) a claim to foreclose its amended construction lien against her home. In support of these claims, ACCD alleged that it had fully and properly installed the roof at Ms. Torrance’s property.
5. ACCD also filed an answer and affirmative defenses in response to Ms. Torrance’s amended complaint, denying that it had deficiently installed the roof at her home and asserting compliance with the Florida building code under § 553.84, Florida Statutes, and failure to comply with Chapter 558, Florida Statutes, among others, as defenses to the amended complaint.
6. Ms. Torrance’s affirmative defenses to ACCD’s counterclaim alleged that ACCD failed to install a functioning roof on her home.
7. In support of the Motion, ACCD filed (1) the deposition transcript of ACCD’s owner, Keith Powers, (2) the deposition transcript of Ms. Torrance, (3) an affidavit of Mr. Powers with several exhibits attached, and (4) an affidavit of Thomas Tafelski with several exhibits attached. All four of these documents were accepted into evidence by the Court without objection by Ms. Torrance’s counsel.
8. In May 2023, while this lawsuit was still pending, Torrance replaced the roof. Torrance Tr. at 43:11-44:22; 66:18-19; 81:14-16.
9. Neither Torrance nor her counsel gave notice to or otherwise informed ACCD that she was having the roof replaced. Torrance Tr. at 43:16-44:22; Powers Aff. at ¶ 18.
10. ACCD’s expert Thomas Tafelski provided an affidavit indicating that it would be impossible for him to provide an opinion as to the correctness or code compliance of ACCD’s installation of the roof at Ms. Torrance’s home, specifically indicating the following:
a. In order to given an opinion regarding the condition of the work performed by ACCD, code compliance, and the need for any repairs, I must first be able to physically observe the roof at the Property. This includes going onto the roof, examining the materials used, determining whether any maintenance has been performed, and taking measurements and pictures of the condition of the roof and any claimed or apparent deficiencies. If there are claimed deficiencies in the installation of the roof that would only exist or be observable underneath the finished surface of the roof (i.e. underneath the shingles), then destructive testing must be done to temporarily remove the finished surface of the roof.
b. I then take the observed conditions of the roof and compare them to the Florida Building Code requirements to determine if the conditions meet the minimum requirements of the Florida Building Code.
c. I then also take the observed conditions and determine if they comport with industry standard practices in the area where the roof is installed, in this case, Pinellas County, Florida.
d. In this case, my knowledge of the industry standard practices in Pinellas County, Florida is based on my own experience and training as a licensed roofing contractor in Pinellas County, Florida since 1988, my experience and training as a licensed home inspector in Pinellas County, Florida since 2012, and having installed or inspected more than 10,000 roofs in Pinellas County, Florida.
e. Finally, I compare the performed work to the requirements of the contract to see if it conforms to the requirements of the contract.
f. Here, it is impossible to evaluate the roof as installed by ACCD and the claimed deficiencies, because the roof was removed and replaced in its entirety without the ability to inspect prior to its removal.
g. The only way to evaluate these deficiencies and determine (1) if they exist, (2) if any of them are violations of the Florida Building Code, (3) whether they could be repaired, and (4) any other mitigating circumstances is to physically inspect them. Without them, it is impossible to give an opinion that ACCD properly installed the roof in compliance with the Florida Building Code, or that any claimed deficiencies could have been repaired, rather than requiring the whole roof to be replaced.
h. I have been provided with all of the pictures produced by Ms. Torrance in discovery in this lawsuit. Those are attached hereto as Exhibit A. While some of those pictures purport to identify deficiencies in the roof, it is impossible to tell the scope of the deficiency or to determine if it is an issue with ACCD’s workmanship or a condition caused by something else.
i. Moreover, none of the conditions listed above . . . are shown in the pictures attached to this affidavit. In fact, some of the pictures purporting to show a deficient condition, actually appear to the show the condition in a state of demolition already. For example, one photograph says “Previous roof install the underlayment didn’t go to the wall,” but it is apparent from the picture that demolition has already begun. It is impossible to tell if the statement on the picture or the claimed deficiency is accurate.
j. The pictures of the roof also do not show the underlayment or unevenness in the shingles. The very issues that Ms. Torrance claims are deficiencies are not observable in her pictures produced in discovery and are not able to be inspected now because the roof has been removed and destroyed.
k. If I were able to inspect the roof as installed by ACCD, I would be able to testify as to whether any of the conditions listed [above] existed, if so, whether any of them fell outside of compliance with the Florida Building Code, and, whether replacement of the roof was necessary to remedy any of them. Because the roof has been removed, and because the pictures provided are inadequate, I cannot.Legal Standard
11. “Sanctions may be appropriate when a party has spoliated, lost, or misplaced evidence.” Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1057 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1963a]. “Florida courts may impose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence.” League of Women Voters of Florida v. Detzner, 172 So. 3d 363, 391 (Fla. 2015) [40 Fla. L. Weekly S432a]; Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1566c]. Dismissal of a case is an appropriate sanction where the loss of evidence renders the opposing party completely unable to proceed with its case or defense. See Fleury v. Biomet, Inc., 865 So. 2d 537, 539 (Fla. 2d DCA 2003) [29 Fla. L. Weekly D43b]. Moreover, regardless of intent, once the evidence is gone, if it effectively precludes one party from prosecuting its claims or defenses, sanctions are appropriate. See DePuy, Inc. v. Eckes, 427 So. 2d 306, 308 (Fla. 3d DCA 1983).
12. Here, it is undisputed that the roof installed by ACCD existed at the time this lawsuit was filed and that it was within the sole control of Ms. Torrance when she replaced it. She also replaced the roof without any prior notice to ACCD. The removal of the roof without prior notice removed the ability of ACCD to defend itself in this lawsuit.
Accordingly, and for the reasons stated on the record during the hearing, which are hereby incorporated into this order by reference,1 it is hereby ORDERED and ADJUDGED as follows:
13. ACCD’s Motion is hereby GRANTED IN PART as follows: Ms. Torrance’s claims and defenses asserted in this case are dismissed and default hereby entered against her as to ACCD’s breach of contract claim. ACCD’s unjust enrichment and quantum meruit claims are moot as a result.
14. ACCD’s Motion is hereby DENIED IN PART as follows: notwithstanding the foregoing, default is not entered against Ms. Torrance as to ACCD’s lien foreclosure claim and Ms. Torrance shall be allowed to defend herself against ACCD’s claim for lien foreclosure.
__________________
1A copy of the transcript of this hearing has been filed with the Court on December 3, 2024.* * *