       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 22, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2591
                         Lower Tribunal No. 13-30482
                             ________________


                      Perez-Gurri Corporation, etc.,
                                    Appellant,

                                        vs.

                             Don McLeod, et al.,
                                    Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.

     GPG Law, and Christopher J. Perez-Gurri (Fort Lauderdale); Samson
Appellate Law, and Daniel M. Samson, for appellant.

     Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez and Karen
M. Shimonsky (Tampa), for appellee M2G2 Architects, LLC.


Before LOGUE, SCALES, and LUCK, JJ.

     LOGUE, J.
      Perez-Gurri Corporation (the General Contractor) appeals a trial court order

dismissing its action against defendants Engineering Design Associates, Inc.,

Mitchell Stewart, and Robert Salsbury (the EDA Defendants). We reverse. The

General Contractor is not contractually barred from bringing a delay damages

claim against these defendants and the General Contractor should be allowed an

opportunity to amend its complaint to address the trial court’s added ruling—made

without notice to the parties—that the complaint did not meet minimum pleading

standards against these defendants.

      The General Contractor is a Florida construction company that successfully

bid on, and became the general contractor for, a City of Miami renovation project

for the Caribbean Marketplace in Little Haiti. The City’s prime consultant on the

project subcontracted with an architect who, in turn, subcontracted with the EDA

Defendants to prepare mechanical, electrical, and plumbing design services. When

construction on the renovation project was delayed, the General Contractor sued

the EDA Defendants.

      In its fourth amended complaint, the General Contractor alleged that the

delay was caused by the EDA Defendants’ professional malpractice in the

preparation of the design documents for the renovation project. The EDA

Defendants moved to dismiss the complaint, arguing in part that a “No Damages




                                        2
for Delay” clause in the contract between the General Contractor and the City of

Miami insulated the EDA Defendants from liability.

       In October 2015, the trial court entered a nonfinal order granting the EDA

Defendants’ motion to dismiss based on the “No Damages for Delay” clause in the

contract between the General Contractor and the City. The General Contractor

moved for entry of final judgment so it could challenge on appeal the trial court’s

interpretation of the General Contractor-City contract. The trial court indicated that

in order for it to enter a final dismissal with prejudice, the General Contractor

would have to “affirmatively state that [it] cannot embrace another theory because

it has to be clear that the Court is allowing [it] leave to amend.” The General

Contractor thereafter gave formal notice that it was not going to amend its

complaint as to the claims brought against the EDA Defendants. It stated, “[i]n

light of this Court’s findings of fact and conclusions of law, including those that

relate to the contract, Plaintiff believes that any further amendment would be

futile.”

       The trial court entered its final judgment of dismissal in February 2016.

However, in addition to its prior ruling that the General Contractor’s claims were

precluded by the “No Damages for Delay” clause, the trial court added a new basis

for dismissal—that the General Contractor failed to meet minimum pleading

requirements. This appeal followed.



                                          3
      We reverse and remand for two reasons. First, for the reasons explained in

the companion case of Perez-Gurri Corp. v. McLeod, No. 3D15-2590 (Fla. 3d

DCA Nov. 22, 2017), the “No Damages for Delay” clause in the contract between

the General Contractor and the City insulates only the City from liability for delay

damages.

      Second, we conclude it was error to add an alternate basis for dismissal not

raised by the parties—a pleading deficiency—without first giving the General

Contractor notice of this new ground and an opportunity to amend its complaint.

The record shows that the General Contractor’s statement that it would not amend

its complaint was predicated solely on its effort to appeal the trial court’s

dispositive ruling that the delay damages clause protected the EDA Defendants.

Prior to making that statement, the General Contractor had no notice that the trial

court was going to dismiss its case on the alternative basis that the pleadings were

insufficient. Accordingly, we reverse and remand for the trial court to provide the

General Contractor an opportunity to amend its complaint against the EDA

Defendants.

      Reversed and remanded.




                                         4
