Florida Circuit Court, Appellate Division

Miami-Dade County v. Plenary Justice Miami, LLC

Case no.: 2025-22-AP-01
Date filed: July 10, 2026

A Florida appeals court has ruled that a contractor’s insertion of a fragmentary network (fragnet) into a CPM schedule did not alter the actual critical path of the project. The contractor could recover for the full duration of the government-caused delay.

Miami-Dade County entered into an agreement with Plenary Justice Miami LLC (Plenary) to finance, design, build, operate and maintain a civil courthouse. Plenary contracted the design and construction to Tutor Perini Corporation (TPC).

Plenary’s agreement with the county required substantial completion by January 23, 2024. The agreement included a baseline project schedule detailing a path to timely completion. Plenary was required to update the schedule monthly using the critical path method. The County assumed the financial risk of delays caused by the County.

During the construction phase of the project, the county failed to have an existing underground electrical duct bank, owned by Florida Power and Light, relocated in a timely manner. This impacted the construction of the 215 foundation piles required in the design, an activity on the schedule’s critical path. Plenary and Tutor Perini tried to devise a plan to mitigate the project delay. One possibility was to construct 150 piles while waiting for the County to relocate the duct bank. The remaining 65 piles would be constructed after relocation. Plenary inserted a fragmentary network into the project schedule reflecting this hypothetical approach.

A fragmentary network (fragnet) is a CPM modeling tool that can be used to hypothesize regarding the impact of a specific event, such as a change or a delay. It contains its own tasks and durations, which can be inserted into the larger master project schedule.

In this case, the fragnet was inserted into the project schedule in five consecutive monthly updates. This caused the duct bank relocation to drop from the longest path on the schedule. Plenary then concluded that the split construction of the foundation piles would not be feasible. The duct bank did not leave sufficient room on the site to mobilize an appropriate drill rig. The fragnet was removed from the schedule, and the duct bank relocation reemerged as a critical path issue.

During the subsequent litigation of Plenary’s delay claim, the County accepted a finding that duct bank relocation had delayed the work by 224 days. The County, however, argued that not all of the days were compensable owner-caused delay. There had been concurrent periods when the constructor would not have been working on the foundation piles, notwithstanding the duct bank problem. As supporting evidence, the County cited the five monthly schedule updates containing the fragnet. During those five months, the duct bank relocation was not on the longest or critical path of the project schedule.

The Florida Circuit Court, Appellate Division, emphasized that the fragnet had been used as a model reflecting a hypothetical method of construction. It did not indicate actual work on the ground. Plenary had been attempting to mitigate its damages in accordance with its contractual obligations. When the alternative construction method was deemed impractical, the fragnet was removed from the project schedule. The actual critical path of the project schedule never changed.

“Because the fragnet modeled TPC commencing foundation work concurrent with—rather than after—the completion of [the duct bank] relocation, it artificially reduced the float attributable to [relocation] in the schedule. This caused [relocation] to drop from the longest path to a ‘secondary path.’... When the fragnet proved to be unworkable, TPC ‘reversed the logic so the FPL duct bank would be removed in its entirety’…Upon removal of the fragnet, [relocation] immediately re-emerged as the reported critical path driver and remained so through the completion of the relocation work in March 2021.”

The court also said, “[W]e find that the Hearing Examiner’s decision to award delay damages to Plenary for all 224 days of delay for [duct bank relocation] was supported by competent substantial evidence.”

The court did reverse the award of an additional 42 days of delay damages arising out of a separate event. While the County had been slow to negotiate a covenant agreement regarding the relocation of a chilled water line, Plenary did not submit the engineering plans required for a permit until after the covenant agreement was signed.

The court opinion doesn’t indicate whether it would have been possible for the contractor to keep the fragnet modeling to itself pending a determination of practicability.

Participants:
For the County: Monica Rizo Perez
For Plenary Justice: William Cary Wright
For Tutor Perini Corp: Bernard Allen

Before: Judges Trawick, Areces, R., and de la O, JJ.
Opinion by: Judge de la O
Outcome: Award of delay damages affirmed in part.

Source: Please click here to read the complete opinion.