DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BK MARINE CONSTRUCTION, INC.,

Appellant,

v.

SKYLINE STEEL, LLC, and GREAT AMERICAN INSURANCE 

COMPANY,

Appellees.

No. 4D16-1241

[November 1, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael L. Gates, Judge; L.T. Case No. CACE12030715.

Robert A. Sweetapple and Berkley S. Vitale of Sweetapple, Broeker & 

Varkas, PL, Boca Raton, for appellant.

Patrick G. Brugger and Michael Jay Rune II of Shutts & Bowen, LLP, 

Miami, for appellee Skyline Steel, LLC.

FORST, J.

Appellant BK Marine Construction, Inc. (“BKM”) appeals the trial 

court’s final summary judgment order in favor of appellee Skyline Steel, 

LLC (“SKY”). The trial court found that under the Rental Contract for Steel 

Sheet Piling (“Rental Contract”), BKM owed SKY a total sum of 

$776,853.27 including accrued interest. On appeal, BKM argues the trial 

court improperly granted summary judgment because the court granted 

relief greater than that pled in the amended complaint, and because 

genuine issues of material fact remained as to the amount of damages 

awarded. Finding the second argument meritorious, we reverse and 

remand for further proceedings consistent with this opinion. 

Background

BKM is a Florida construction company that regularly used steel sheet 

pilings for its construction projects, including a large endeavor called the 

Interstate 595 Project (“I-595 Project”). To complete the I-595 Project, BKM 

acquired steel sheet pilings from SKY, with which BKM had a business 
2

relationship spanning over twenty-five years. In April 2011, BKM began 

receiving invoices from SKY pertaining to the I-595 Project.1 Two months 

later, on June 2, 2011, BKM and SKY formally entered into the Rental 

Contract in which SKY agreed to rent steel sheet pilings to BKM in 

exchange for payments upon receipt of periodic invoices. The Rental 

Contract specifically referred to project “I-595, 3rd Section” and stated the 

agreement would become binding upon acceptance and execution of the 

contract or when shipments began. The Rental Contract also listed the 

monthly prices and specifications for steel sheet pilings, but it did not state 

a specific amount that would be owed by BKM to SKY. BKM continued 

placing orders and receiving invoices from SKY through July 2012. 

One year after the creation of the Rental Contract, BKM notified SKY 

that it was behind on paying several invoices and outlined a plan to pay 

the outstanding balance of “$500,000 (+ or −).” Nearly one year later, SKY 

filed a complaint against BKM, alleging, in pertinent part, breach of 

contract and unjust enrichment. In response, BKM moved to dismiss the 

complaint on the grounds that “without copies of the exhibits being 

attached to the pleading,” BKM was unable to respond to the complaint,

and SKY failed to appropriately state a cause of action. SKY then amended 

its complaint and attached the Rental Contract, but did not attach any 

other contracts nor any invoices. BKM subsequently filed its answer

asserting three affirmative defenses: (1) SKY’s complaint failed to state a 

cause of action; (2) BKM had already paid the outstanding balance owed 

under the contract; and (3) SKY could not pursue a claim in equity (unjust 

enrichment), as there was an enforceable contract. 

SKY ultimately moved for summary judgment. It explained that no 

issues of material fact remained because BKM signed the Rental Contract, 

SKY delivered the ordered materials, and BKM failed to pay the full amount 

owed under the invoices; therefore, SKY argued, it met all of the requisite 

elements of the breach of contract claim. SKY attached several documents 

to its motion. First, it attached an affidavit of indebtedness by its Chief 

Financial Officer, who explained that, “[b]eginning on May 10, 2011, 

Skyline delivered invoices to BKM under the Agreement totaling 

$669,583.93,” and that BKM admitted in a letter that it owed “$500,000 

(+ or −).” The CFO attached the letter to her affidavit. Second, SKY 

attached a multitude of invoices dating from April 2011 through July 2012 

detailing the monthly rental agreements. 

In response, BKM argued there remained genuine issues of material 

1 There is some evidence in the record that BKM began receiving invoices before 

April 2011. 
3

fact, and filed a deposition transcript of one of SKY’s corporate 

representatives, who appeared to be the employee at SKY most familiar 

with the present lawsuit. The representative testified that he knew the I595 Project had multiple sections,2 but he did not know which invoices 

pertained to which section. To figure that out, he mentioned he would 

have to see the installation records from the general contractors. He also 

explained how he did not know whether SKY was owed more than $15,000 

under the Rental Contract (for “I-595, 3rd Section”) attached to the 

amended complaint. 

The trial court granted SKY’s motion for summary judgment, awarding 

what it deemed to be the unpaid principal and interest due on the Rental 

Contract, a total of $776,853.27. BKM timely appealed this final summary 

judgment order. 

Analysis

“The standard of review for an order granting summary judgment is de 

novo.” Int’l Christian Fellowship, Inc. v. Vinh on Prop., Inc., 954 So. 2d 

1214, 1215 (Fla. 4th DCA 2007) (quoting 5th Ave. Real Estate Dev., Inc. v. 

Aeacus Real Estate Ltd. P’ship, 876 So. 2d 1220, 1221 (Fla. 4th DCA 

2004)). “Summary judgment is proper if there is no genuine issue of 

material fact and if the moving party is entitled to a judgment as a matter 

of law.” Id. (quoting Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 

So. 2d 126, 130 (Fla. 2000)). On this first requirement, “[i]f the evidence 

raises any issue of material fact, if it is conflicting, if it will permit different 

reasonable inferences, or if it tends to prove the issues, it should be 

submitted to the jury as a question of fact to be determined by it.” Moore 

v. Morris, 475 So. 2d 666, 668 (Fla. 1985); see also Dellatorre v. Buca, Inc., 

211 So. 3d 272, 273 (Fla. 4th DCA 2017) (similar). 

BKM raises two issues on appeal. First, it argues that the trial court 

erred in its final summary judgment order by granting more damages than 

what SKY sought in its amended complaint. Next, it argues that myriad 

genuine issues of material fact remained as to the amount of damages 

owed under the contract sued upon. SKY disagrees. It contends that there 

were no genuine issues of fact regarding the amount of damages awarded, 

per the invoices attached to its summary judgment motion, and that it did 

not seek greater damages than it pled in its complaint. On this last point, 

SKY contends that even if there was error, that error was harmless 

because BKM was in possession of the invoices almost two years before 

2 The representative testified that he did not know if there were written contracts 

for the other four sections of the I-595 Project. 
4

the filing of the motion for summary judgment, and SKY alleged an 

alternative unjust enrichment claim. 

We find merit in BKM’s second argument on appeal, and hold that the 

trial court erred in granting summary judgment in favor of SKY.3 Multiple 

genuine issues of material fact remained below as to which of the invoices

attached to the motion for summary judgment correspond to the Rental 

Contract attached to SKY’s amended complaint. Several characteristics of 

the invoices suggest to us that they relate to the whole I-595 Project, and 

not merely “the 3rd Section.” First, none of the invoices specify whether 

they relate to a designated section of the I-595 Project. Second, many of 

the invoices predate June 2, 2011, the date the Rental Contract was 

signed. As BKM rightfully notes, the first invoice was dated April 7, 2011, 

fifty-six days before the parties signed the Rental Contract. Further, SKY’s 

CFO stated in an affidavit that “[b]eginning on May 10, 2011, Skyline

delivered invoices to BKM under the Agreement totaling $669,583.93.” 

Third, SKY’s corporate representative testified during a deposition that he 

knew there were five sections of the I-595 Project, but he did not know if 

the invoices at issue pertained solely to the third section or the entire I595 Project. Instead, he testified that the installment records, which were 

not used as evidence by either party, could further clarify the issue. 

This uncertainty regarding which invoices correspond to which section 

of the I-595 Project is inextricably tied to the amount of damages SKY

could seek under the Rental Contract—another material issue of fact. The

SKY corporate representative admitted he did not know if more than 

$15,000 was due on the Rental Contract attached to the amended 

complaint. Due to this uncertainty in the amount of damages owed under 

the Rental Contract, we must reverse the summary judgment. 

We also note SKY’s alternative argument that, even if it loses on the 

breach of contract issue, the invoices still support its unjust enrichment 

claim and, therefore, the final summary judgment award. However, SKY 

only proceeded under the complaint for damages arising under the third 

section of the I-595 Project, whereas the unjust enrichment claim 

references invoices for work that predated that rental contract. “A court 

may not go beyond the four corners of the complaint.” Samuels v. King 

Motor Co. of Fort Lauderdale, 782 So. 2d 489, 494 (Fla 4th DCA 2001) 

(citing Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th

DCA 2000)). SKY made clear in its general allegations that the Rental 

Contract, which applied only to the third section of the I-595 Project, was 

the operative contract at hand. The existence of this express contract

3 By way of our disposition, we need not address BKM’s first argument on appeal. 
5

necessarily defeated SKY’s unjust enrichment claim. See Real Estate 

Value Co. v. Carnival Corp., 92 So. 3d 255, 263 n.2 (Fla. 3d DCA 2012) 

(“We acknowledge the well settled principle that ‘the law will not imply a 

contract where an express contract exists concerning the same subject 

matter.’” (emphasis omitted) (quoting Kovtan v. Frederiksen, 449 So. 2d 1, 

1 (Fla. 2d DCA 1984))). 

Conclusion

Because genuine issues of material fact remain, we reverse the trial 

court’s entry of final summary judgment. There remains uncertainty 

regarding which invoices pertained to which section of the I-595 Project, 

and by way of such uncertainty, the amount of damages SKY could obtain

under the Rental Contract. 

Reversed.

CONNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.