JAMES L. GREENBURG, APPELLANT,
v.
BRENDA E. JOHNSTON AND FIDELCO GROWTH INVESTORS, APPELLEES
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Greenburg appealed from a trial court's final judgment dismissing his condominium defect claim and denying his motion to amend the complaint. The appellate court held that the trial court abused its discretion in denying the amendment, as the proposed amended complaint would have stated a viable common law implied warranty cause of action. The court affirmed the summary judgment on the statutory warranty claim but reversed the denial of the amendment.
The trial court properly granted summary judgment on the statutory warranty claim but abused its discretion in denying the motion to amend, because the proposed amendment would have stated a viable cause of action under Florida common law. A plaintiff should not be deprived of a full day in court through summary proceedings where the record indicates a bona fide cause of action exists.
[1] A trial court abuses its discretion by denying a motion to amend a complaint when the proposed amendment would state a cause of action.
[2] A motion for leave to amend a complaint is not necessarily untimely if filed at a hearing on a motion for summary judgment.
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Join FLexlaw to unlock all legal intelligence“Appellant should not be deprived of his full day in court by summary proceedings, where, as here, the record indicates he may have a bona fide cause of action.”
Establishes the principle that a plaintiff should not be denied an opportunity to proceed to trial when a viable cause of action exists
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Join FLexlaw to unlock all legal intelligenceGreenburg purchased a defective condominium from Johnston and Fidelco Growth Investors. He initially sued under the statutory implied warranty provisi…
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SCHEB, Judge.
The trial court entered a final judgment in favor of appellees/defendants after denying appellant/plaintiff’s motion to amend his complaint. We hold that the trial court abused its discretion in not allowing appellant to amend, since it was apparent the proffered amendment would state a cause of action. We, therefore, reverse the final judgment.
Appellant brought suit against appellees, alleging that he was entitled to damages under the implied-warranty provisions of § 718.203, Fla.Stat. (1977) because the condominium he purchased was defective. Ap-pellees each moved for summary judgment and accompanied their motions with exhibits showing that construction of the condominium commenced prior to July 1, 1974, the operative date of the warranty provided in § 718.203(5), Fla.Stat. (1977). Appellant filed nothing in opposition.
However, at the summary judgment hearing he presented a motion for leave to amend his complaint to allege a cause of action based on breach of common law implied warranty.
The trial court granted appellees a summary judgment, and, after further deliberation, denied appellant’s motion for leave to amend and entered final judgment in favor of appellees.
On motion for summary judgment, appellees’ sole contention was that appellant had not stated a cause of action because construction commenced before the operative date of the statutorily imposed warranties. Appellant did not controvert the exhibit showing that construction had, in fact, commenced before the operative date of the statutory warranty.
Hence, there was no genuine issue of any material fact in this regard, and the trial court properly entered a summary judgment as to appellant’s claim of breach of statutory warranty. Appellees did not, however, submit anything to controvert their status as developers, or that they sold a structurally defective new condominium to appellant. Florida law recognizes a common law cause of action for breach of an implied warranty of merchantability in the sale of new condominiums. Putnam v. Roudebush, 352 So. 2d 908 (Fla.2d DCA 1977).
From the facts alleged in appellant’s complaint, it appears that appellant may be able to plead a cause of action based on a common law theory. Appellant should not be deprived of his full day in court by summary proceedings, where, as here, the record indicates he may have a bona fide cause of action. Beckerman v. Greenbaum, 347 So. 2d 141 (Fla.2d DCA 1977); see Hart Properties, Inc. v. Stack, 159 So. 2d 236 (Fla.1963); Fla.R. Civ.P. 1.190(a).
While good practice dictates that a motion for leave to amend should be filed at an earlier stage; it is not necessarily untimely if filed at the hearing on a motion for summary judgment or even after the motion is granted. Of course, after a responsive pleading has been filed, leave to amend is discretionary with the court. Fla. R.Civ.P. 1.190(a). But where, as here, it becomes apparent that the plaintiff can state a cause of action, it is an abuse of discretion to deny the motion to amend. Gold Coast Crane Service v. Watier, 257 So. 2d 249 (Fla.1971); Roberts v. Braynon, 90 So. 2d 623 (Fla.1956).
Accordingly, we affirm the grant of summary judgment to appellees, but reverse the order denying appellant leave to amend. The final judgment is vacated and the trial court is directed to allow appellant to file an amended complaint alleging breach of a common law warranty.
HOBSON, A. C. J., and RYDER, J., concur.
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Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995)…Inc. v. Watier, 257 So. 2d 249 (Fla.1971). If the trial court concludes that the plaintiff can state a bona fide cause of action, it must grant the motion, for to do otherwise would constitute an abuse of its discretion. E.g., Greenburg v. Johnston, 367 So. 2d 229 (Fla. 2d DCA 1979). Accordingly, we reverse the trial court’s entry of summary final judgment on behalf of appellee and remand for further proceedings. Reversed and remanded for further proceedings. FRANK, C.J., and THREADGILL J., concur.…
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Mayme Bondu v. Ruben Gurvich, M.D., 473 So. 2d 1307 (Fla. 3d DCA 1978)…, 90 So. 2d 623 (Fla.1956); Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980), and a denial of leave to amend is an abuse of discretion where the proffered amendment indicates that the plaintiff can state a cause of' action, Greenburg v. Johnston, 367 So. 2d 229 (Fla. 2d DCA 1979); cf. Davis v. Sun First Nat’l Bank of Orlando, 408 So. 2d 608 (Fla. 5th DCA 1981) (dicta), rev. denied, 413 So. 2d 875 (Fla.1982), if the proffered amendment pleads a cause of action different than that pleaded in the complaint, t…
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The Sandarac Ass'n, Inc. v. W.R. Frizzell Architects, Inc., 609 So. 2d 1349 (Fla. 2d DCA 1992)…laint. We have consolidated the two appeals. Sandarac has not sued the developer for breach of contract, and has not sued any party for breach of an express or implied warranty of habitability, fitness or merchantability. See Greenburg v. Johnston, 367 So. 2d 229 (Fla. 2d DCA 1979); § 718.-203, Fla.Stat. (1991). We assume that the decision not to pursue these claims was made either because the contract and warranties provide no relief at this late date or because the parties with which Sandarac had privity a…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956)
- Gold Coast Crane Serv., Inc. v. Watier, 257 So. 2d 249 (Fla. 1971)
- Putnam v. Wilson F. Roudebush et ux., 352 So. 2d 908 (Fla. 2d DCA 1977)
- Beckerman v. Greenbaum, 347 So. 2d 141 (Fla. 2d DCA 1977)