16-005719F White Rock Quarries vs. Dorothy Brown-Alfaro And Amilcar Alfaro Status: Closed DOAH Final Order on Monday, August 7, 2017.

Summary: Petitioner is not entitled to attorneys' fees under sections 57.105 and 552.40, Fla. Stat. Competent, substantial evidence supported Respondents' claims. Petitioner is entitled to costs under section 552.40, totaling $9,287.00.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHITE ROCK QUARRIES,

Petitioner,

vs. Case No. 16 - 5719F

DOROTHY BROWN - ALFARO AND

AMILCAR ALFARO,

Respondents.

_______________________________/

FINAL ORDER

This matter came befor e Administrative Law Judge Darren A.

Schwartz of the Florida Division of Administrative Hearings for

final hearing by video teleconference on April 13, 2017, at

sites in Tallahassee and Lauderdale L akes, Florida.

APPEARANCES

For Petitioner: Miguel A. De Grandy, Esquire

Pedro Gassant, Esquire

Holland & Knight, LLP

701 Brickell Avenue, Suite 3300

Miami, Florida 33131

For Respondent s : Br ian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

Whether Petitioner, White Rock Quarries (Ð White RockÑ ), is

entitled to an award of attorney Ó s fees to be paid by

Respondents, Dorothy Brown - Alfaro and Amilcar Alfaro

(ÐRespondentsÑ or ÐMs. AlfaroÑ ) , pursuant to section 57.105,

F lorida Statutes, and an award of attorney Ó s fees and taxable

costs to be paid by Res pondents pursuant to section 552.40(9),

Florida Statutes ; and, if so, the amount of attorney Ó s fees and

taxable costs to which White Rock is entitled.

PRELIMINARY STATEMENT

On August 16, 2016, the undersigned issued a Final Order in

Case No. 15 - 6014CM, concluding that Respondents failed to prove

that White RockÓs blasting activities caused damages to their

home. On September 29, 2016, White Rock filed its motion for

attorney Ó s fees and taxable costs. On September 30, 2016, the

Division of Administrati ve Hearings (ÐDOAHÑ) opened a new case

(Case No. 16 - 5719F) , regarding White RockÓs request for

attorneyÓs fees and taxable costs.

On November 1 5 , 2016, the undersigned set this matter for

final hearing on December 14, 2016. On November 17, 2016,

Responden ts requested a continuance of the final hearing. On

November 22, 2016, the undersigned entered an Order granting the

motion, and reset the final hearing for February 23, 2017.

On February 15, 2017, Respondents requested a continuance

of the final hearing . On February 17, 2017, the undersigned

entered an Order denying the motion. On February 21, 2017,

counsel for Respondents appeared in the matter and filed an

unopposed and amended motion to continue the final hearing. On

February 21, 2017, the undersig ned entered an Order granting the

motion, and reset the final hearing for April 13, 2017.

The final hearing commenced as scheduled on April 13, 2017.

At the hearing, the parties stipulated that no witness testimony

would be presented and limited their p resentations to argument.

White RockÓs Exhibits 1 through 12 were received into evidence.

Respondents Ó Exhibits 1 through 6 and 8 through 11 were received

into evidence.

At the hearing, the parties agreed to file their proposed

final orders within 10 d ays after the filing of the final

hearing transcript at DOAH. The one - volume final hearing

Transcript was filed on June 20, 2017. On June 28, 2017, White

Rock filed a motion to extend the time until July 7, 2017, for

the parties to file their proposed fi nal orders. On June 28,

2017, the undersigned entered an Order granting the motion. The

parties timely filed their proposed final orders, which have

been considered in the preparation of this Final Order. Unless

otherwise stated, all statutory and rule references are to the

statutes and rules in effect at the time of the alleged

violations.

FINDING S OF FACT

1. White Rock engages in construction materials mining

activities in Miami - Dade County, Florida. Specifically, White

Rock utili zes explosives to procure construction materials

(i.e., limestone) from quarries that are located in northwest

Miami - Dade County, Florida.

2 . Respondents reside in a single - family, one - story home

located at 14699 Southwest 47th Street, Miramar, Broward Co unty,

Florida 33027. Respondents are the third owners of the home,

which was built in 1981. Respondents have resided in the home

since 1998. The home is approximately 3,000 square feet Ðunder

air,Ñ and is composed of concrete block with stucco finishes, a

shallow slab - on - grade foundation system, wood - framed interior

walls, and ceramic tile flooring.

3. The subject quarries are located within various

geographic areas identified by different sections in close

proximity to RespondentsÓ home . O f particu lar relevance to the

instant matter are sections 7, 6, and 4/5. Section 7 is

approximately 2.6 or 2.7 miles from RespondentsÓ home.

Section 6 is approximately 2.3 or 2.4 miles from RespondentsÓ

home. Section 4/5 is approximately 1.6 miles from Responde ntsÓ

home. 1 /

4. In the underlying case, Respondents asserted that White

RockÓs quarrying activities caused damages to their home.

Respondents alleged damages centered on ÐcracksÑ that exist

throughout the home -- specifically, cracks throughout the ti le

flooring inside the home; cracks on the cement flooring of the

garage; cracks in the interior and exterior walls and ceilings;

cracks in the semi - circular, stamp - concrete driveway and patio;

and cracks around the surface of the windows.

5. It is und isputed that cracks exist throughout

RespondentsÓ home and that RespondentsÓ home is damaged because

of the cracks. However, the issues to be determined in the

underlying proceeding were whether the cracks were caused by

White RockÓs blasting activities , and , if so, the amount

Respondents should be compensated for the damages.

6 . Section 552.40(1) provides, in pertinent part, that:

(1) A person may initiate an administrative

proceeding to recover damages resulting from

the use of explosives in connectio n with

construction mining materials mining

activities by filing a petition with the

Division of Administrative Hearings by

electronic means through the divisionÓs

website on a form provided by it . . . .

7. Pursuant to section 552.40(2)(c) and (d), the petition

must include:

(c) The approximate time, date, and place

of the use of explosives which is alleged to

have resulted in damage to the petitioner;

and

(d) A description of the damage caused and

the amount sought for recovery.

8 . On December 1 4, 2015, RespondentsÓ former counsel filed

an Amended Petition Under the Florida Construction Materials

Mining Activities Administrative Recovery Act. In the amended

petition prepared and filed by Respondents Ó former counsel

p ursuant to sections 552.40(1) and (2) , Respondents claimed they

were entitled to the following items of damages caused by White

RockÓs blasting activities:

Floor ($24,000)

Foundation ($100,000)

Walls ($50,000)

Ceiling ($20,000)

Patio ($50,000)

Driveway ($75,000)

Windows ($45,000) 2 /

9 . The final hearing in the underlying proceeding lasted

two days.

10 . At th at hearing, Respondent Dorothy Brown - Alfaro (who

appeared pro se at the final hearing) , presented photographs and

a home inspection report showing cracks throughout the home.

She described new, worsening, and expanding cracks throughout

the home resulting from White RockÓs blasting activities.

1 1 . In addition, Ms. Alfaro submitted into evidence a

blasting log , which documented the date, time, and intensity of

White RockÓs ongoing blasting activit ies since 1999 Respondents

claimed they felt at their home. The blasting log was also an

exhibit to RespondentsÓ amended petition.

1 2 . At the hearing, Ms. Alfaro testified to White RockÓs

frequent blasting and the effects on h er home from the blast s .

According to Ms. Alfaro, when White RockÓs blasting activities

occur, the house Ðsways,Ñ Ðeverything shakes , Ñ and Ðthe entire

structure of my house moves . Ñ According to Ms. Alfaro, Ðwhen it

shakes, my ceiling, my roof, my walls, my floor, everything

shakes.Ñ She testified that items fall of f the shelves and she

described the feeling from the blasts as a Ðvibration similar to

an earthquake.Ñ

1 3 . Ms. Alfaro presented the additional testimony of

Barbara Hagan, Paul Ingelmo, and Ismailia Rashid. Mr. Ingelmo

is a structural engineer who performed a visual inspection of

Respondents Ó residence. Ms. Rashid is a general and roofing

contractor. Neither M r. Ingelmo , Ms. Rashid , nor Ms. Hagan

could opine that the damages to Respondents Ó home were caused by

White RockÓs blasting activities.

1 4 . Ms. Alf aro is an electrical contractor. She is not a

licensed general contractor or structural engineer. At hearing,

Ms. Alfaro conceded that she does not have experience as a

general contrac tor or seismologist. She has not had any

training in seismology or blasting activities. The undersigned

found Ms. AlfaroÓs testimony regarding the purported cause of

the cracks not to be credited or persuasive.

1 5 . Ms. Alfaro regularly provides construction estimates

in her business. Ms. Alfaro testified that the damages she

requested in the amended petition were based upon her estimate

of the repair costs she would incur to correct the damage s

caused by White RockÓs blasting activities. She t estified,

without objection, that she obtained material costs and

calculated the amount of materials needed (i.e. per cubic yard

of concrete and drywall) and labor to complete the repairs .

1 6 . In response to the evidence presented by Ms. Alfaro at

the h earing , White Rock presented the testimony of Jeffrey A.

Straw, a seismologist; David L. Teasdale, a civil structural

engineer; and Michael Schraeger, a general contractor and

building inspector .

1 7 . As a seismologist, Mr. Straw was responsible for

moni toring the impacts and vibration from White RockÓs blasting

activities and analyzing their effects on structures. At the

hearing, h e described the concept of peak particle velocity

(ÐPPVÑ), the speed at which a particle of ground oscillates as

the vibrati on wave moves through the ground following a blast.

Mr. Straw testified that a ccording to seismographs located

within the vicinity of RespondentsÓ home, at no time have any of

White RockÓs blasting activities reached or exceeded the PPV

limit of 0.5 in ch per second established by the state of

Florida.

1 8 . Mr. Straw also visited RespondentsÓ home twice: in

April 2006 and January 2016. On both occasions, Mr. Straw

brought a camera and notepad with him to catalog the defects

identified by Respondents. M r. Straw took extensive and

comprehensive photographs detailing the cracks throughout

RespondentsÓ home and driveway. Mr. Straw also testified that

90 percent of the alleged defects he observed in 2016 were items

that he also observed in some format in 20 06. 3/

1 9 . While at RespondentsÓ home in January 2016, Mr. Straw

experienced the effects of a blast. He described it as

Ð[r]elatively minor based on blasts that I felt , Ñ and indicated

the blast lasted about three to five seconds at most. H owever,

Mr. Str aw further testified that he could feel the impact of the

blast under his feet, and he could hear it, Ðthere was some

general vibration of the structure,Ñ and some Ð dish rattling.Ñ

20 . Mr. Teasdale is extensively familiar with seismographs

and has exten sive experience installing and using them. At the

hearing, he was accepted by the undersigned as an expert in

structural behavior from ground motion and normal service loads,

the influence of construction practices and environmental

conditions on building features, soils and hardscape, the causes

and conditions documented at RespondentsÓ residence, and lot

features including the suitability of existing safe blasting

standards in the state of Florida.

21 . Mr. Teasdale explained the substantial difference s

between an earthquake and quarry blasting. Mr. Teasdale

testified that for blasting to cause damage to a structure,

distortion must occur. According to Mr. Teasdale, distortion

occurs where the foundation of a structure is accelerated

laterally and cau ses the under part of the building to lag in

response, which causes the building to shift back and forth and

mimic a parallelogram shape. He explained that when distortion

occurs, cracks will emanate from the corner of the walls and

that those cracks will be mirrored on the opposite walls (inside

and outside the structure).

2 2 . Mr. Teasdale testified there was no damage to the

foundation of RespondentsÓ home, and the foundation and floor of

a home would not experience distortion at 0.5 PPV or below

becau se those limits are too low to produce the energy necessary

to cause a structure to become mobilized.

2 3 . According to Mr. Teasdale, RespondentsÓ home exhibited

a variety of horizontal and vertical cracks and separations in

the finishes, which are typica l of environmental stresses in

those materials. Mr. Teasdale also testified that distortion

causes diagonal cracks, while thermal environmental stresses

cause cracks vertically and horizontally. He explained that

cracks caused by environmental conditions do not correlate on

the inside and outside, while cracks caused by distortion do

correlate on the inside and outside. He emphasized that the

absence of corresponding cracks on the inside and outside of the

structure generally precludes blasting as the ca use of damages.

2 4 . Mr. Teasdale explained that from the moment the

concrete is cast, it begins to shrink and develop cracks.

Mr. Teasdale further explained that stucco, which is essentially

the same material as concrete, is also prone to cracks due to

normal environmental conditions.

2 5 . Based on his review and analysis of RespondentsÓ home,

Mr. Teasdale concluded that he would exclude blasting to a

reasonable degree of scientific certainty as the cause of

damages to RespondentsÓ home .

2 6 . Mr. Sch raeger has been licensed as a general

contractor for 22 years and specializes in repairs, remodeling,

and renovations of commercial and residential structures. He

has 20 years of experience performing inspections of buildings

relating to determination of material, construction failure, and

defects.

2 7 . At the hearing, Mr. Schraeger was accepted by the

undersigned as an expert in construction practices and

environmental effects on materials and structures.

2 8 . Mr. Schraeger inspected RespondentsÓ h ome in 2006 and

2016. He testified that 90 to 95 percent of the alleged defects

he observed in the home in 2016 existed when he inspected the

home in 2006.

2 9 . Mr. Schraeger testified that the cracks that he

observed on the tile floor inside RespondentsÓ home are very

typical in a South Florida home because concrete typically

cracks within all concrete structures. These types of cracks

can be caused by poor installation of the tile or shrinkage of

the monolithic slab over time. He opined there was no evi dence

of foundation damage.

30 . Mr. Schraeger further testified that in his

professional opinion, some of the cracks in RespondentsÓ home

are the result of poor construction practices. For example, he

explained that most of the cracks in the interior of the home

are due to poor construction practices because of the use of an

inappropriate method for finishing the joints in the drywall.

During his 2016 inspection, Mr. Schraeger observed tape on some

of the joints, which either had no joint compound under them, or

the tape was applied after the compound started to dry, causing

a bond failure. Some of the cracks generating from the corners

of openings appeared to be from improperly secured corner bead.

31 . During his 2016 inspection, Mr. Schraeger also

o bserved a crack in the master bedroom approximately eight feet

in length, which appeared to be a joint in the drywall. This

was apparent to Mr. Schraeger because the crack was visible on

both sides of the joint tape, which had failed. According to

Mr. Sc hraeger, the cause of this failure was moisture from a

roof leak. Staining due to moisture on the ceiling in the area

and a repair of the roof above this area indicated a previous

leak. Notably, other areas of the home indicated roof leaks,

including sta ins on the ceiling of the office area and staining

around the skylight in the hallway.

3 2 . Mr. Schraeger further testified that the patio tile

and driveway lack sufficient control joints, thereby making the

stamped - concrete driveway and patio prone to c rack.

3 3 . Mr. Schraeger also identified issues of poor

maintenance by Respondents. For example, he noted that the

caulking around the windows was brittle and almost nonexistent.

At the hearing, Mrs. Alfaro acknowledged that in the 17 years

she has owned the home, the windows have never been re - caulked.

3 4 . According to Mr. Schraeger, several cracks were

observed on the stucco exterior walls of the home. With the

exception of a severe crack on the wing wall on the rear of the

patio, he opined that all of the cracks in the exterior walls of

the home were attributed to common aesthetic cracks caused by

the lack of control joints, dissimilar materials, bond failure,

and improper maintenance. According to Mr. Schraeger, the crack

on the wing wall of the patio, which ran along the bottom of a

large tie beam, was attributable to poor construction methods.

3 5 . At the hearing, Mr. Schraeger disputed Ms. AlfaroÓs

cost of repair testimony. However, Mr. Schraeger was not asked

to give an expert opinion regarding the amount of damages, and

he provided only ÐballparkÑ or ÐroughÑ estimates of the cost of

repair.

36. For example, Mr. Schraeger testified that the cost to

repair the flooring would be Ðapproximately $11,000.Ñ 4/ As to

the foundatio n, he esti mated the cost to be $ 0 .00 because he

found no damage. As to the walls, Mr. Schraeger estimated a

figure of $16,000. As to the ceiling, Mr. Schraeger estimated a

figure of $5,000. As to the patio, Mr. Schraeger estimated a

figure Ðwell within the high e nd of six thousand.Ñ As to the

driveway , Mr. Schraeger estimated a range between ÐroughlyÑ

$17,000 and $20,000 - - t he high end of the range resulting from

Ðmaterial fluctuationÑ construction costs. As to the windows,

Mr. Schraeger estimated $12,000.

37. C learly, Mr. Schraeger acknowledged there are actual

damages throughout much of the home , and there are actual costs

associated with the repair of the damages. That the parties

disagreed as to the amount of damages as to each item of alleged

damages does not mean that the amount of damages claimed was

unsupported by the material facts necessary to establish the

claim.

3 8 . In sum, based on the evidence adduced at the hearing,

the undersigned found that Respondents failed to prove by a

preponderance of th e evidence that the damages to their home

were caused by White RockÓs blasting activities. Rather, the

preponderance of the evidence presented at hearing established

that the damages to RespondentsÓ home were not caused by White

RockÓs blasting activities .

3 9 . In reaching this conclusion, the undersigned credited

and found persuasive the testimony of Mr. Straw, Mr. Teasdale,

and Mr. Schraeger.

40 . Although the undersigned was not persuaded in the

underlying case by the evidence presented by Respondent s, th is

does not mean that RespondentsÓ claims were not supported by the

material facts necessary to establish the claims.

41 . There was competent, substantial evidence introduced

by Respondents at h earing showing that: (1) RespondentsÓ home

was in clo se proximity to White RockÓs frequent blasting

activities; (2) w hen the blasting occurs, the house Ðsways,Ñ

Ðeverything shakes , Ñ Ðthe entire structure of [the] house

moves,Ñ items fall off the shelf, and Ms. Alfaro feels a

vibration similar to an earthquak e; and ( 3) there are cracks

throughout the home -- some of the cracks are new, worsening, and

have expanded as a result of White RockÓs frequent blasting

activities.

42. W hite Rock is the prevailing party in Dorothy Brown -

Alfaro and Amilcar Alfaro v. Wh ite Rock Quarries , DOAH Case

No. 15 - 6014CM. However, White Rock has failed to establish it

is entitled to an award of attorneysÓ fees pursuant to section s

57.105 and 552.40(9).

4 3 . On page 16 of its p roposed final o rder, White Rock

also claims it is e ntitled to recover taxable costs under

section 552.40(9) , totaling $9, 287 , as the prevailing party in

the underlying case. The amount of taxable costs claimed is

based on Exhibits 12A through 12G.

44. In Respondents Ó P roposed F inal O rder, Respondents d o

not dispute that White Rock is entitled to Ðrecover costs

totaling $9,287.15 (all the costs claimed except for the cost of

lunches totaling $62.65) as costs reasonably necessary to defend

the claims asserted in the underlying case.Ñ The undersi gned

has examined White RockÓs E xhibits 12A through 12G, which

constitute the universe of taxable costs sought, and t he total

of the costs is $9,287 . There is no cost of lunches included

within E xhibits 12A through 12G. All of the costs identified in

E xhibits 12A through 12G are taxable costs or incidental

administrative costs directly associated with the case, and

therefore, are recoverable under section 552.40.

CONCLUSIONS OF LAW

4 5 . DOAH has jurisdiction over the subject matter and

parties pursuant to se ctions 120.569, 120.57(1), 57.105(5), and

552.40 , Florida Statutes .

4 6 . Section 57.105(1) provides in pertinent part:

(1) Upon the courtÓs initiative or motion

of any party, the court shall award a

reasonable attorneyÓs fee, including

prejudgment inter est, to be paid to the

prevailing party in equal amounts by the

losing party and the losing partyÓs attorney

on any claim or defense at any time during a

civil proceeding or action in which the

court finds that the losing party or the

losing partyÓs attorn ey knew or should have

known that a claim or defense when initially

presented to the court or at any time before

trial:

(a) Was not supported by the material facts

necessary to establish the claim or defense;

4 7 . Similarly, section 552.40(9) p rovide s in pertinent

part:

(9) The prevailing party is entitled to

recover taxable costs, including reasonable

expert witness fees and any incidental

administrative costs directly associated

with the case. The prevailing party is

entitled to an award of reason able

attorneyÓs fees if the administrative law

judge determines that the claim or defense

of the nonprevailing party:

(a) Was not supported by the material

facts necessary to establish the claim or

defense ; . . . .

4 8 . The statutes upon which White Rock relies to support

entitlement to attorneys' fees must be strictly construed

because statutes providing for attorneys' fees are in abrogation

of the common law. Johnson v. Dep't of Corr. , 191 So. 3d 965,

968 (Fla. 1st DCA 2016).

4 9 . The phrase Ðsup ported by the material factsÑ was

defined in Albritton v. Ferrera , 913 So. 2d 5, 7 n.1 (Fla. 1st

DCA 2005), to mean that the Ðparty possesses admissible evidence

sufficient to establish the fact if accepted by the finder of

fact.Ñ If the losing party Ðpre sents competent, substantial

evidenc e in support of the claim . . . and the trial court

determines the issue of fact adversely to the losing party based

on conflicting evidence,Ñ fees are not warranted. Siegel v.

Rowe , 71 So. 3d 205, 212 (Fla. 2d DCA 2011 ). As stated in

Siegel:

57.105 does not penalize losing parties and

their attorneys when they present competent

substantial evidence in support of the

losing partiesÓ claims or defenses simply

because the trier of fact resolves

conflicting testimony agai nst the loser. A

contrary conclusion would make engaging in

litigation a very risky proposition for both

lawyers and their clients.

Siegel , 71 So. 3d at 213.

50 . As detailed above, there was competent, substantial

evidence introduced by Respondents at hearing in support of

their claims.

51 . Although the undersigned was not persuaded in the

underlying case by the evidence presented by Respondents, their

claims were nevertheless supported by the material facts

necessary to establish the claims. In other words, had the

undersigned accepted the evidence presented by Respondents as

more persuasive and credible than the responsive evidence

presented by White Rock, a final order in favor of Respondents

would have been supported by competent, substant ial evidence.

52 . White Rock mistakenly contends that even if

RespondentsÓ home shook as a result of its blasting activities,

this evidence cannot constitute a material fact supporting

RespondentsÓ claims because of the state of Florida 0.5 PPV

limit and the fact that White Rock did not exceed the limit .

53 . Although the fact s of the 0.5 PPV limit and White

RockÓs consistent blasting below the limit w ere persuasive

evidence in the undersignedÓs resolution of the issue of

causation in White RockÓs favor, it was only part of the

totality of evidence presented during the underlying proceeding .

54 . Other evidence, as detailed above, was presented by

Respondents , including, that the home was in close proximity to

where White RockÓs b last ing occurred; the h ome swayed, shook,

vibrated, and items inside the home fell following frequent

blasting ; there were cracks throughout the home; and there were

new and worsening cracks following blasting . Had the

undersigned found the evidence presented by Respondents to be

more persuasive and credible than the evidence presented by

White Rock, a final order in favor of Respondents would have

been supported by c ompetent, substantial evidence.

55 . White Rock contends that because Respondents lacked

expert testimony to support their claims, their claims were not

supported by the material facts necessary to support their

claims. Whether expert witness testimony is required to

establish a claim under section 552.40 was recently addressed in

Gateway Estates Park Condomini um Association v. SDI Quarry , DOAH

Case No. 16 - 1025CM , 2017 Fla. Div. Adm. Hear. LEXIS 119 ( Fla .

DOAH Feb . 28, 2017). In that case, Judge Van Laningham stated:

The Act is silent as to whether the issue of

causation is provable without expert

testimony. Generally speaking, Ðit is not

always necessary to prove legal causation by

expert testimony if other competent evidence

demonstrates causation,Ñ such as proof of

circumstances which support the reasonable

inference of cause and effect. Gant v. Lucy

HoÓs Bamboo Garden , 460 So. 2d 499, 501

(Fla. 1st DCA 1984); see also, Alton Box Bd.

Co. v. Pantya , 236 So. 2d 452, 454 (Fla. 1st

DCA 1970)(Where, as in an action for damages

from air pollution, the jury is at liberty

to reject expert testimony and accept lay

t estimony as to a question of causation

involving facts not within the ordinary

experience of members of the jury, then such

facts may be proven by lay testimony.).

56 . The undersigned agrees with Judge Van LaninghamÓs

analysis and rejects White RockÓs assertion that RespondentsÓ

failure to offer expert testimony renders their claims lacking

in the material facts necessary to support their claims.

57 . White Rock also contends that each item of damages

sought by Respondent s in paragraph eight above cons titutes a

separate and distinct claim, for which Respondents were required

to present material facts in support. In furtherance of its

position, White Rock relies on Folta v. Bolton , 493 So. 2d 440

(Fla. 1986) , and Avatar Development Corp. v. De P ani

Const r uction , Inc. , 883 So. 2d 344 (Fla. 4th DCA 2004).

58 . These cases are distinguishable from the instant case.

Folta involved a multicount medical malpractice action against a

hospital and several of its employees, including a radiologist.

In that case, there were different claims, brought against

different parties, involving different injuries. The plaintiff

prevailed on a claim against the radiologist and the hospital

prevailed on many of the claims against it. The issue in that

case centered on who was the prevailing party for purposes of

awarding attorneysÓ fees under section 768.56. The Supreme

Court held:

that in a multicount medical malpractice

action, where each claim is separate and

distinct and would support an independent

action, as opposed to being an alternative

theory of liability for the same wrong, the

prevailing party on each distinct claim is

entitled to an award of attorneyÓs fees for

those fees generated in connection with that

claim.

Folta , 493 So. 2d at 441.

59 . In Ava tar , a stucco contractor , DePani , entered into a

contract with Avatar, a development company, to perform stucco

work on a residential development. Avatar terminated the

contract and DePani sued for breach of contract and foreclosure

of a construction lien for nonpayment of materials and services

already performed. The trial court held a bench trial and ruled

in favor of DePani on the breach of contract claim.

Subsequently, the parties settled the construction lien count,

including the attorneysÓ fees awa rdable to DePani under that

count. The appellate court reversed the judgement in favor of

DePani on the breach of contract claim. The question on appeal ,

as in Folta , was who is the prevailing party ? The appellate

court concluded that the construction l ien claim was separate

and distinct from the contractual claim for loss of future

profits. Accordingly, pursuant to Folta , DePani was entitled to

attorneysÓ fees on the construction lien foreclosure claim and

Avatar was entitled to attorney Ó s fees on the contractual claim

for future lost profits. Id. at 345 - 346.

60 . The instant case does not involve a multicount

complaint in a civil proceeding based on different causes of

action or legal theories of recovery. Rather, the alleged

damages in this cas e arise out of a single claim that White

RockÓs blasting activities caused damages, which consist of

cracks throughout RespondentsÓ home. The fact that the cracks

are located in different geographic areas of RespondentsÓ home

and Respondents attributed di fferent amounts of damages to

different areas of the home does not mean that RespondentsÓ

itemized damages are separate and distinct claims.

61 . White Rock also contends that RespondentsÓ claims are

time - barred under section 552.40(1), which require that a

petition be filed at DOAH within 180 days of any damage caused

by the blasting activity and by section 95.11(3)(f), Florida

Statutes, which requires claims based upon a statutory right to

be brought within four years of accrual of the cause of actio n.

The undersigned considered this argument in the underlying case

and it was rejected. White Rock did not appeal the Final Order.

62 . It is inappropriate for the undersigned to address

this issue again because it was raised , rejected in the

un derlying proceeding , and not appealed . In any event, a s

indicated previously in endnote three of the Final Order in

Case No. 15 - 6014CM, White Rock failed to meet its burden of

proof of demonstrating that RespondentsÓ claims are barred by

sections 552.40( 1) and 95.11(3)(f). See Snyder v. Wernecke , 813

So. 2 d 213 (Fla. 4th DCA 2002)(concluding that construction

defect claim involving worsening of cracks in home over many

years was not barred by the four - year statute of limitations

found in section 95.11(3) ).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner, White Rock QuarriesÓ motion

for attorney Ó s fees is DENIED. White RockÓs claim of costs is

GRANTED. Costs in the amount of $9,287. 00 are hereby as sessed

against Respondents, Dorothy Brown - Alfaro and Amilcar Alfaro.

DONE AND ORDERED this 7th day of August, 2017 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Admini strative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of August , 2017 .

ENDNOTES

1 / Each of the sections have been utilized as a discrete

location where blasting activities occur in order for White Rock

to obtain construction materials. Section 7 was in operation

from the mid - 1990Ós through the end o f 2015. Currently, no

blasting activities occur in section 7. Section 6 was in

operation from 2000 through 2015. Currently, no blasting

activities occur in section 6. Section 4/5 began blasting

operations in the first quarter of 2015 and halted in the fourth

quarter while excavation was done. Blasting in section 4/5

resumed in January 2016.

2/ On May 3, 2016, RespondentsÓ former counsel filed a motion to

withdraw as counsel for Respondents based on Ðirreconcilable

differences.Ñ On May 4, 2016, th e undersigned entered an Order

granting the withdrawal.

3/ Notably, in August 2006, Respondents submitted an insurance

claim for damages to their home, which they alleged were caused

by White RockÓs blasting activities. The insurance company

denied the claim. Subsequently, Respondents submitted three

separate complaints to the Division of State Fire Marshall

regarding alleged damages caused to their home due to White

RockÓs blasting activities. In response, Respondents received

three notices from the Division of State Fire Marshall in

October 2007, December 2010, and February 2014. In these

notices, Respondents were advised of their right to submit a

petition to DOAH, which has exclusive jurisdiction over such

claims for damages occurring due to the u se of explosives in

connection with construction materials mining activities.

However, RespondentsÓ petition was not filed with DOAH until

October 23, 2015.

4/ In June 2015, Respondents hired a company to replace some of

the tile floors inside the home . At hearing, Ms. Alfaro

testified that the company used quality tile, proper materials,

and properly prepared the cement surface before installing the

new tile, in order to properly bond the tile to the slab

surface. No cracks have appeared in the new t ile, which the

undersigned found belied any notation that White RockÓs blasting

activities caused damages to the old tile.

COPIES FURNISHED:

Miguel A. De Grandy, Esquire

Pedro Gassant, Esquire

Holland & Knight, LLP

701 Brickell Avenue , Suite 3300

Miam i, Florida 33131

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Tallahassee, Florida 32301

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to j udicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the D ivision of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agenc y maintains its headquarters or where a

party resides or as otherwise provided by law.