HIGHLANDS COUNTY SCHOOL BOARD, APPELLANT,
v.
K. D. HEDIN CONSTRUCTION, INC., A FLORIDA CORPORATION, INSURANCE COMPANY OF NORTH AMERICA, A CORPORATION, EOGHAN N. KELLEY, CONTINENTAL CASUALTY COMPANY, A FOREIGN CORPORATION, AND THE CELOTEX CORPORATION, A CORPORATION, COTTON STATES MUTUAL INSURANCE COMPANY, AND E. C. GOLDMAN, INC., A FLORIDA CORPORATION, APPELLEES
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The court held that dismissal with prejudice was improper when the complaint was not clearly unamendable and leave to amend should have been granted.
[1] Dismissal with prejudice is improper when a complaint fails to state a cause of action if the plaintiff has not abused the privilege to amend and the complaint is not cle…
[2] A trial court should not deny leave to amend a complaint unless the privilege to amend has been abused or the complaint is clearly not amendable.
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Join FLexlaw to unlock all legal intelligenceThe School Board sued a manufacturer for negligence, strict liability, and gross negligence concerning a defective school roof. The trial court dismis…
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OTT, Judge.
The Highlands County School Board appeals from an order dismissing its amended complaint with prejudice. We reverse.
The School Board filed a complaint against appellee and others. As to appellee, the School Board alleged separate counts based on negligence, strict liability and gross negligence. These claims arose out of allegedly defective conditions in the roof of the Lake Placid High School. The roof was constructed of products which had been manufactured by appellee and sold to a subcontractor who eventually installed them on the high school construction project.
The School Board filed an amended complaint, and appellee moved to dismiss for failure to state a cause of action. The trial court granted the motion and entered an order dismissing all counts with prejudice.
The School Board argues on appeal that its amended complaint should not have been dismissed with prejudice, but that it should have been allowed to replead. We agree.
The trial court properly dismissed the amended complaint for failure of the School Board to allege sufficient ultimate facts. However, dismissal with prejudice cannot be justified on this basis alone. Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance and Welding, Inc., 365 So. 2d 425 (Fla.2d DCA 1978). Neither of those circumstances is present in this case. The School Board has previously amended its complaint only once. Further, although there was no privity of contract between the School Board and appellee, this court has recently held that absence of contractual privity is no bar to a tort claim, provided the plaintiff can establish the existence of a duty between the parties independent of the contract. Navajo Circle, Inc. v. Development Concepts, 373 So. 2d 689 (Fla.2d DCA 1979).
The other points raised by the parties have been considered and found to be either without merit or rendered moot by this opinion.
REVERSED and REMANDED for further proceedings consistent with this opinion.
SCHEB, A. C. J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)…hat the trial court abused its discretion in denying motion for leave to amend plaintiffs first amended complaint); Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 1983) (same); Highlands County Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So. 2d 90, 91 (Fla. 2d DCA 1980) (same). As the Fourth District held, a court has no discretion to deny an amendment under the first sentence of the rule. A defendant may contest the legal viability of a first amended complaint by moving to dismiss the amend…
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Affordable Homes, Inc. v. Devil's RUN, 408 So. 2d 679 (Fla. 1st DCA 1982)…or the complaint shows on its face that there is a deficiency which cannot be cured by amendment. Anthony v. Jacksonville Transportation Authority, 383 So. 2d 650 (Fla. 1st DCA 1980); Highlands County School Board v. K. D. Hedin Construction, Inc., 382 So. 2d 90 (Fla. 2d DCA 1980). Here, the record does not reveal that the appellant abused the amendment privilege. Moreover, the appellant has represented to this court in its reply brief that it would be able to allege additional facts and argue case law whic…
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Dryden Waterproofing, Inc. v. Bogard, 488 So. 2d 672 (Fla. 4th DCA 1986)…n justice so requires and it should not be denied unless the privilege has been abused or it is clear the pleading cannot be amended to state a cause of action. Fla.R. Civ.P. 1.190(a); Highlands County School Board v. K.D. Heddin Construction, Inc., 382 So. 2d 90 (Fla. 2d DCA 1980); Osborne v. Delta Maintenance and Welding, 365 So. 2d 425 (Fla. 2d DCA 1978). See also Penn Cork and Closures, Inc. v. Piggyback Shippers Association of Florida, Inc., 281 So. 2d 46 (Fla. 3d DCA 1973). Thus, while we do not sugges…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Navajo Circle, Inc. v. Dev. Concepts Corp., 373 So. 2d 689 (Fla. 2d DCA 1979)
- Osborne v. DELTA Maint. & Welding, Inc., 365 So. 2d 425 (Fla. 2d DCA 1978)