       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      LAMBERT BROTHERS, INC.,
                             Appellant,

                                     v.

                            MID-PARK, INC.,
                               Appellee.

                              No. 4D14-2840

                           [ February 24, 2016 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. 09065726
CACE 14.

  John J. Shahady and Thomas R. Shahady of Kopelowitz Ostrow, Fort
Lauderdale, for appellant.

   Kathleen M. Krak of Shutts & Bowen LLP, Orlando, for appellee.

TAYLOR, J.

    This appeal by Lambert Brothers, Inc. involves a dispute over liability
for sales and use taxes assessed by the Florida Department of Revenue for
the installation of steel gantries at the Sawgrass Expressway Deerfield
Mainline Toll Plaza. Lambert argues that its subcontractor, Mid-Park,
Inc., installed the gantries and was therefore liable for the taxes under
their contract. Because issues of fact remain as to who installed the
gantries, we reverse the final summary judgment entered in favor of Mid-
Park.

   In March 2007, Lambert Brothers (“Lambert”) entered into a contract
with Community Asphalt Corporation to provide services related to the
construction of a toll plaza. A portion of the work on this project included
supplying and installing steel gantries. Mid-Park submitted a bid to
Lambert, and the parties entered into a contract in which Mid-Park agreed
to manufacture and deliver the steel gantries and, according to Lambert,
install them and pay taxes incurred in the performance of its work. The
contract stated in pertinent part:
    The Subcontract price includes and Subcontractor shall pay all
    license fees, assessments and permit charges based upon or
    measured by the work to be done hereunder, labor performed,
    materials furnished, and/or services rendered, including but
    not limited to, business license taxes, occupation, gross
    receipts and like taxes, arising out of the ownership,
    acquisition, furnishing, installation, inspections or use of
    materials, equipment, or other personal property, or furnishing
    labor or services in respect to the subcontract work.

The scope of the work to be performed by the subcontractor was described
in an attached exhibit which stated in relevant part:

    Subcontractor shall furnish all labor, material, equipment,
    supervision, protection, unloading, jobsite distribution, freight,
    taxes, and cost escalation required to provide a complete and
    safe project until acceptance by owner as set forth in the
    Contract Documents and also as detailed below: Furnish and
    Install Steel Toll Gantries.

(Emphasis added).

   In August 2008, the Florida Department of Revenue (“FDOR”) contacted
Lambert regarding an outstanding sales and use tax on the gantries in the
amount of $77,654.56.        Lambert immediately contacted Mid-Park
regarding the tax assessment, explaining that their subcontract price
included the tax and that Mid-Park was responsible for ensuring that the
tax was paid. Lambert also warned Mid-Park that if it failed to pay the
outstanding sales and use tax, Mid-Park would be back-charged for that
amount.

    Lambert informed the FDOR that Mid-Park’s bid included sales and use
tax and that Mid-Park had installed the gantries. In addition, Lambert
provided the FDOR with a copy of the contract stating that Mid-Park would
“Furnish and Install” the gantries. Around the same time, Mid-Park
contacted the FDOR and informed them that the “Install” language in the
subcontract was a scrivener’s error and that Mid-Park did not install the
gantries but only manufactured them. Mid-Park also told the FDOR that
its bid specifically excluded the tax.

   After receiving a Notice of Intent to Make an Assessment from the
FDOR, Lambert sent several letters to Mid-Park inquiring about the tax
payment and informing Mid-Park about a telephone hearing it had
scheduled with the FDOR. Mid-Park did not participate in the telephone

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hearing, and no testimony or evidence was presented at the hearing.

   The FDOR sent Lambert a Notice of Final Assessment. Lambert paid
the $77,654.56 to avoid having a lien placed on the project or having its
accounts seized. After paying the tax, Lambert sent a letter to Mid-Park
advising that it was liable for the taxes and demanding reimbursement.
When Mid-Park refused to pay the taxes, Lambert “back-charged” or
withheld $77,654.56 from the payments it owed to Mid-Park.

    Mid-Park filed a breach of contract action against Lambert, alleging that
Lambert improperly withheld monies due Mid-Park and seeking to recover
the back-charged amount. Mid-Park and Lambert filed competing motions
for summary judgment. In its summary judgment motion, Lambert alleged
that Mid-Park installed the gantries and was liable for the taxes under
FDOR regulations and the unambiguous language of their subcontract.
Mid-Park asserted that Lambert was precluded by collateral estoppel from
re-litigating the tax liability issue because of Lambert’s payment of the
disputed tax after the FDOR investigation and informal hearing.

    After a hearing on the motions for summary judgment, the trial court
denied Lambert’s motion for summary judgment and granted Mid-Park’s
motion. The trial court determined that: (1) collateral estoppel barred re-
litigation of the tax liability issue, and (2) Mid-Park owed no taxes under
the parties’ subcontract and Florida’s tax code because Mid-Park did not
install the gantries and create a “taxable event.”

    Florida law requires a contractor that furnishes and installs materials
that are incorporated into a public works project to pay a sales and use
tax. See § 212.06, Fla. Stat. (2008); Fla. Admin. Code R. 12A-1.094. The
sales and use tax is triggered only when the items are installed onto public
property. See Fla. Admin. Code R. 12A-1.094. Here, both parties claimed
that the other party actually installed the steel gantries at the toll plaza
and incurred taxes in the performance of its work. According to Lambert,
Mid-Park employees were on the construction site and installed portions
of the gantries over a period of several months. Mid-Park, on the other
hand, maintained that it merely assembled parts onto the gantry columns
and trusses and that Lambert erected and installed them at the project
site.

    The standard of review for an order granting summary judgment is de
novo. Eco-Tradition, LLC v. Pennzoil-Quaker State Co., 137 So. 3d 495, 496
(Fla. 4th DCA 2014). “[A]n appellate court must examine the record in the
light most favorable to the non-moving party.” Wolf v. Sam’s E., Inc., 132
So. 3d 305, 307 (Fla. 4th DCA 2014) (citation omitted). Summary

                                     3
judgment should be entered only when there is no genuine issue of
material fact. Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199, 1201 (Fla.
4th DCA 2015).

    From the outset, we reject Mid-Park’s contention that collateral
estoppel precluded Lambert from re-litigating the issue of who installed
the gantries. “The doctrine of collateral estoppel—which is also known as
issue preclusion and estoppel by judgment—bars re-litigation of identical
issues between identical parties in two proceedings.” Provident Life &
Accident Ins. Co. v. Genovese, 138 So. 3d 474, 477 (Fla. 4th DCA 2014).
For the collateral estoppel doctrine to apply, “the following elements must
be met: (1) an identical issue must be presented in a prior proceeding; (2)
the issue must have been a critical and necessary part of the prior
determination; (3) there must have been a full and fair opportunity to
litigate the issue; (4) the parties in the two proceedings must be identical;
and (5) the issues must have been actually litigated.” Id. In sum, the
particular matter must be “fully litigated and determined in a contest
which results in a final decision of a court of competent jurisdiction.” Rice-
Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 1131 (Fla. 4th DCA
2003).

   “‘[T]he principles of res judicata [and collateral estoppel] do not always
nearly fit within the scope of administrative proceedings’ and should be
applied with great caution.” Emiddio v. Fla. Office of Fin. Regulation, 147
So. 3d 587, 590 (Fla. 4th DCA 2014) (quoting Thomson v. Dep’t of Envtl.
Regulation, 511 So. 2d 989, 991 (Fla. 1987)). As the Florida Supreme
Court observed in Thomson, “administrative procedures are often
summary, parties are sometimes unrepresented by counsel, and
permitting a second consideration of the same question may frequently be
supported by other similar reasons which are inapplicable to judicial
proceedings.”     511 So. 2d at 991 (quoting Kenneth Culp Davis,
Administrative Law Treatise § 18.01, at 545-46 (1958)).

   Collateral estoppel does not apply in this case because issues regarding
who installed gantries were not actually litigated at the informal
administrative hearing nor determined based on any admissible evidence.
Further, there was no identity of the parties. Mid-Park was not a party to
the FDOR tax notice and hearing. The tax assessments were addressed
only to Lambert.

   We agree with Lambert that the trial court’s determination that Mid-
Park did not install the gantries and create a taxable event was improper
at the summary judgment stage.          The unambiguous terms of the
subcontract between the parties obligated Mid-Park to furnish and install

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the gantries and to pay all relevant taxes. Here, the record shows that
there was a clear dispute as to which party actually installed the gantries.

  We therefore reverse the Final Summary Judgment entered in favor of
Mid-Park and remand for further proceedings.

   Reversed and Remanded for further proceedings.

WARNER and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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