Florida Power & Light Co. won another chance Wednesday to argue it was not liable for breach of contract in a dispute with a Dania Beach rock-mining company.
The Fourth District Court of Appeal ruled former Broward Circuit Judge Robert Rosenberg erred in granting summary judgment on liability to Road Rock Inc., which was awarded $20.46 million in a bench trial.
Following a rehearing, Rosenberg changed his mind and granted a new trial on damages only. FPL appealed.
Fourth District Judge Alan O. Forst concluded the contract language was susceptible to two meanings, and dismissal of the liability question "should be denied if different inferences can be reasonably drawn from the uncontroverted facts."
With concurrence from Judges Spencer Levine and Mark Klingensmith, Forst reversed summary judgment and affirmed Rosenberg's decision granting a new trial on damages.
Road Rock was founded by Bob Elmore, one of Fort Lauderdale's early entrepreneurs. He started his first business in the 1940s by paving driveways for wealthy property owners.
In 1955, Elmore entered a contract with FPL, which wanted a lake for cooling water on land he owned adjacent to the two-unit Lauderdale power plant northeast of U.S. 441 and Griffin Road. Elmore would own the rock and sand excavated from the lake, which was to expand to 150 acres.
The method of excavation provided that 50-foot strips, referred to as jetties, were to be left intact, to allow Elmore to carry on mining operations throughout the lake. All of the jetties would be removed by Elmore, at his expense, "upon completion of his quarrying operation."
In 1984, Elmore conveyed the property to FPL on the condition that Elmore would retain title to "rock, stabilizer and sand lying within the lake."
In 2004, Elmore sought a new county permit to dredge the lake. FPL objected, and the county rescinded Elmore's permit. He sued for breach of contract and unjust enrichment.
Each side claimed in their motions to dismiss that the contract favored its side. Elmore's motion was granted.
FPL contended that "lying within the lake" meant submerged material only. Elmore ckaimed it included land above water but within the lake, which included the jetties.
In favoring Elmore, Rosenberg found, "If one were standing on one of these barriers, he would be surrounded by water, except for the narrow strip of the barrier. … The individual would surely be within the lake, even though his feet would be dry."
Elmore died in 2010 a month after winning the trial. His daughter, Pamela Hayes of Parkland, now represents his estate. The plaintiffs were represented by Robert Marzulla and Nancie Marzulla of Marzulla Law in Washington.
"We're fully prepared to pursue this litigation. We believe in the rightness of our case," said Robert Marzulla of Marzulla Law in Washington, Road Rock's attorney. "FPL did breach the contract and is liable for damages."
FPL spokesman Greg Brostowicz said, "We are pleased with the outcome."
FPL was represented by Raoul Cantero and Moneyede Martin of White & Case in Miami and in-house attorney Robert Scanlan of Jupiter.