HARVEY JACOBSON AND BARBARA JACOBSON, HIS WIFE, APPELLANTS,
v.
HERITAGE QUALITY CONSTRUCTION CO., INC., ET AL., APPELLEES
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The Jacobsons appealed a trial court's order dismissing their complaint against Deni Associates with prejudice for failure to state a cause of action. The court reversed, holding that while the complaint failed to adequately plead a third party beneficiary contract claim, the Jacobsons should have been given leave to amend rather than having the case dismissed with prejudice.
The trial court erred in dismissing the complaint with prejudice. While the complaint failed to state a valid tort claim (because the alleged breach was purely contractual) and failed to adequately allege the elements of a third party beneficiary contract claim, the Jacobsons should have been given leave to amend their complaint to properly plead the contractual theory.
[1] A plaintiff cannot sue a defendant in tort for a negligent breach of contract unless the tort is distinguishable from or independent of the breach of contract.
[2] An intended third-party beneficiary of a contract may recover damages from the contracting parties for breach of contract.
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Join FLexlaw to unlock all legal intelligence“even where a defendant 'flagrantly, unjustifiably, and oppressively breaches a contract,' the plaintiff cannot sue the defendant in tort unless the tort is distinguishable from or independent of the breach of contract”
Establishes the rule that contractual breaches alone cannot form the basis for tort liability in Florida
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Join FLexlaw to unlock all legal intelligenceThe Jacobsons contracted with Heritage Quality Construction Company to purchase real property and have a house built on it. Heritage allegedly hired D…
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PER CURIAM.
Harvey and Barbara Jacobson appeal the trial court’s order granting Deni Associates of Florida, Inc.'s motion to dismiss the Ja-cobsons’ complaint with prejudice. We reverse and remand.
The Jacobsons contracted with Heritage Quality Construction Company to purchase a parcel of real property and a house to be built on the property. Heritage allegedly hired Deni as a subcontractor to survey the real estate, prepare a sketch of the survey and lay out the house on the property. The Jacobsons filed a complaint against Deni for its failure to properly do its job.
Deni filed a motion to dismiss, which the trial court granted without comment. The motion alleged several grounds for dismissal. However, failure to state a cause of action was the only valid ground here.
The Jacobsons’ complaint did fail to state a cause of action in tort, since the only tort which Deni allegedly committed was the negligent breach of its contract. The Florida Supreme Court has held that even where a defendant “flagrantly, unjustifiably, and oppressively breaches a contract,” the plaintiff cannot sue the defendant in tort unless the tort is distinguishable from or independent of the breach of contract. AFM Corp. v. Southern Bell Telephone and Telegraph Co., 515 So. 2d 180, 181 (Fla.1987).
The Jacobsons’ complaint also failed to allege sufficient facts to support a cause of action in contract. The Jacobsons correctly argue on appeal that an intended third party beneficiary of a contract may recover damages from the contracting parties if they breach the contract. See Thompson v. Commercial Union Ins. Co. of New York, 250 So. 2d 259, 261 (Fla.1971); Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100 (Fla. 4th DCA 1969). However, the complaint failed to allege that Heritage and Deni intended that the Jacob-sons benefit from their contract. Nor did the complaint allege facts concerning the contract which could indicate that Heritage and Deni intended for the Jacobsons to benefit from their contract.
Nevertheless, the trial court should not have dismissed the Jacobsons’ complaint with prejudice. Rather, it should have given the Jacobsons leave to amend to properly allege a contractual cause of action under a third party beneficiary theory. See Hamer v. Kahn, 404 So. 2d 847 (Fla. 4th DCA 1981).
REVERSE AND REMAND.
DOWNEY, STONE and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…e failed to perform its duties as property manager. Failure, on MLG’s part, to perform its contractual obligations does not give rise to an independent action in tort upon which Lennar may bring suit. See Weimar; Jacobson v. Heritage Quality Const., 604 So. 2d 17 (Fla. 4th DCA 1992), review denied, 613 So. 2d 5 (Fla.1993); McElvy, Jennewein, et al. v. Arlington Elec., 582 So. 2d 47 (Fla. 2d DCA) review denied 587 So. 2d 1327 (Fla.1991). On the facts of this case Lennar has not alleged a breach of duty separa…
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Caretta Trucking, Inc. v. Cheoy LEE Shipyards, 647 So. 2d 1028 (Fla. 4th DCA 1994)…. Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla.1985). The exception to this rule is where the entity that is not a party to the contract is an intended third party beneficiary of the contract. Jacobson v. Heritage Quality Constr. Co., 604 So. 2d 17 (Fla. 4th DCA 1992), dismissed, 613 So. 2d 5 (Fla.1993). A party is an intended beneficiary only if the parties to the contract clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class…
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Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400 (Fla. 4th DCA 2004)….1985); Caretta Trucking Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d 1028 (Fla. 4th DCA 1994). There is an exception when the non-party is specifically the intended third party beneficiary of the contract. Jacobson v. Heritage Quality Constr. Co., 604 So. 2d 17 (Fla. 4th DCA 1992), rev. dismissed, 613 So. 2d 5 (Fla.1993). A non-party is the specifically intended beneficiary only if the contract clearly express an intent to primarily and directly benefit the third party or a class of persons to which that p…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- AFM Corp. v. S. Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla. 1987)
- Thompson v. Commercial Union Ins. Co. OF NEW York, 250 So. 2d 259 (Fla. 1971)
- Rolf E. Weimar v. Yacht Club Point Ests., Inc., 223 So. 2d 100 (Fla. 4th DCA 1969)
- Young v. State, 404 So. 2d 847 (Fla. 4th DCA 1981)
- Hamer v. Kahn, 404 So. 2d 847 (Fla. 4th DCA 1981)