KERRY'S BROMELIAD NURSERY, INC., APPELLANT,
v.
FREDERICK E. REILING, APPELLEE
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Kerry's Bromeliad Nursery appealed the dismissal of a negligence count against Frederick Reiling for negligently manufacturing fiberglass panels that failed and damaged the nursery's property. The court reversed, holding that a five-day filing delay was not grounds for dismissal absent prejudice, and that an express warranty by Reiling's corporation does not bar personal tort liability for negligence.
The court reversed the dismissal, holding that a five-day filing delay constitutes an abuse of discretion where there was no showing of prejudice to the defendant. The court further held that an express warranty limiting contractual damages does not bar tort recovery for negligence unless it expressly absolves the defendant of liability for his own negligence, and that corporate officers remain personally liable for their own tortious acts regardless of employment status.
[1] A trial court abuses its discretion in dismissing a complaint for a minor delay in filing an amended count when no prejudice to the opposing party is demonstrated.
[2] An express warranty that limits contractual damages for breach of warranty does not preclude a tort recovery for negligence.
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Join FLexlaw to unlock all legal intelligence“the trial court abused its discretion in dismissing the subject amended count of the complaint on the stated ground that it was filed five days late... because (a) the amended count was only five days late, as opposed to the extensive several-month delays in past cases where dismissals of this nature have been upheld, and (b) the defendant demonstrated no prejudice below from the five-day delay in filing the subject amended count”
Establishes the standard for dismissal based on filing delays and that minimal delays without prejudice constitute abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceDefendant Reiling personally manufactured fiberglass panels that were installed in plaintiff's greenhouse. The panels were allegedly negligently const…
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PER CURIAM.
This is an appeal by the plaintiff Kerry’s Bromeliad Nursery, Inc. from a final order dismissing an amended count of a complaint sounding in negligence against the defendant Frederick E. Reiling. We reverse the final order under review based on the following briefly stated legal analysis.
First, the trial court abused its discretion in dismissing the subject amended count of the complaint on the stated ground that it was filed five days late [under a prior trial court order dismissing the original count of the complaint] because (a) the amended count was only five days late, as opposed to the extensive several-month delays in past cases where dismissals of this nature have been upheld, and (b) the defendant demonstrated no prejudice below from the five-day delay in filing the subject amended count, D’Best Laundromat, Inc. v. Janis, 508 So. 2d 1325, 1326 (Fla. 3d DCA 1987), and cases collected. Indeed, the defendant makes no effort on appeal to defend the dismissal based on the above ground.
Second, the subject amended count otherwise pleads a proper cause of action sounding in negligence against the defendant. It is alleged that the defendant personally manufactured certain fiberglass panels which were installed in the plaintiff’s greenhouse; that said panels were negligently constructed; and that, as a result of such negligent construction, the said panels failed during a harsh rainstorm, causing substantial property damage to the plaintiff’s plant inventory. Contrary to the defendant’s argument, the express warranty given by the defendant’s wholly owned close corporation on the fiberglass panels does not preclude a tort recovery in the instant action. This is so because the express warranty purports only to limit the plaintiff’s breach of warranty contractual damages and does not, as required, expressly absolve the close corporation [or its employees] of any liability for its own negligence. See Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla.1979); 3 R. Anderson, Uniform Commercial Code §§ 2-313:5, 2-313:8 (1983).
This being so, the defendant is personally liable in tort for any property damage caused by his own negligence in personally manufacturing the subject fiberglass panels.
Moreover, the fact that the defendant allegedly committed such negligent acts while employed as the chief executive officer for his close corporation cannot change this result because it is settled that a corporate employee is personally liable for his own torts— even though committed within the scope of his employment with the said corporation. See, e.g., McElveen v. Peeler, 544 So. 2d 270 (Fla. 1st DCA 1989); P.
V. Constr. Corp. v. Kovner, 538 So. 2d 502 (Fla. 4th DCA 1989); White-Wilson Medical Center v. Dayta Consultants, Inc., 486 So. 2d 659 (Fla. 1st DCA 1986); Naranja Lakes Condominium No. One, Inc. v. Rizzo, 422 So. 2d 1080 (Fla. 3d DCA 1982) (Action for construction defects; two contract counts against corporate officer properly dismissed but two negligence counts for negligent design should have remained pending in light of the general rule that corporate officers “ ‘are no less liable for their tortious acts by virtue of those acts having been per formed in the corporate name.’ ”); Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363 (Fla. 4th DCA 1981); Adams v. Brickell Townhouse, Inc., 388 So. 2d 1279 (Fla. 3d DCA 1980); 1 Am.Law of Prod. Liab. 3d § 5.23, at 43-44 (T. Travers ed. 1987); 2 F. O’Neal, R. Thompson, O’Neal’s Close Corporations § 8.04 (3d ed. 1988); Restatement (Second) of Agency § 350 comment c, illustration 4 (1958).
The final order of dismissal is reversed and the cause is remanded to the trial court with directions to allow the plaintiff to file the above-stated amendment to count eight of the amended complaint.
Reversed and remanded.
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Sekot Labs., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990)…dismissal without prejudice was as severe a sanction as could be justified.* In the present case the delay was short, and it was abundantly clear at all times that the plaintiff intended to go forward. See Kerry’s Bromeliad Nursery, Inc. v. Reiling, 561 So. 2d 1305 (Fla. 3d DCA 1990); D’Best Laundromat, Inc. v. Janis, 508 So. 2d 1325, 1326 (Fla. 3d DCA 1987), and cases cited therein. We affirm the orders of dismissal but reverse insofar as they dismissed with prejudice. Affirmed in part, reversed in part. *…
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Southland Constr., Inc. v. The Richeson Corp., 642 So. 2d 5 (Fla. 5th DCA 1994)…e, e.g., First Florida Bank, N.A. v. Max Mitchell & Co., 558 So. 2d 9 (Fla.1990); Mayor and City Council of City of Columbus, Miss. v. Clark-Dietz and Associates-Engineers, Inc., 550 F.Supp. 610 (N.D.Miss.1982); Kerry's Bromeliad Nursery v. Reiling, 561 So. 2d 1305 (Fla. 3d DCA 1990); Scott v. Sun Bank of Volusia County, 408 So. 2d 591 (Fla. 5th DCA 1981). . Donnelly Construction Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P. 2d 1292 (Ariz.1984). . See, e.g., Angel, Cohen and Rogovin v. Oberon Inv., N.V.…
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A-1 Racing Specialties, Inc. v. K & S Imports OF Broward Cnty., Inc., 576 So. 2d 421 (Fla. 4th DCA 1991)…her, as to the count for civil theft, the corporate officer may be liable for torts committed even while acting as the representative of a corporate entity. McElveen v. Peeler, 544 So. 2d 270 (Fla.1st DCA 1989); Kerry’s Bromeliad Nursery v. Reiling, 561 So. 2d 1305 (Fla.3d DCA 1990). Therefore, it was error for the trial court to dismiss Klein from the suit without first resolving the issue of tort liability, possibly at summary judgment proceedings, or later at trial. Finally, we grant the appellant’s motio…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Charles POE Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487 (Fla. 1979)
- Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363 (Fla. 4th DCA 1981)
- White-Wilson Med. Ctr. v. Dayta Consultants, Inc., 486 So. 2d 659 (Fla. 1st DCA 1986)
- McELVEEN v. Peeler, 544 So. 2d 270 (Fla. 1st DCA 1989)
- Bernard Adams (a misnomer whose correct name is Bernard Abrams) v. Brickell Townhouse, Inc., 388 So. 2d 1279 (Fla. 3d DCA 1980)
- D'Best Laundromat, Inc. v. Janis, 508 So. 2d 1325 (Fla. 3d DCA 1987)
- P.V. Constr. Corp. v. Kovner, 538 So. 2d 502 (Fla. 4th DCA 1989)
- Naranja Lakes Condo. NO. ONE, Inc. v. S.A. Rizzo, 422 So. 2d 1080 (Fla. 3d DCA 1982)