MARTIN A. GROSSO AND BRENDA J. GROSSO, APPELLANTS,
v.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY, APPELLEE
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The court affirmed summary judgment for AT&T but reversed the denial of leave to amend, allowing plaintiffs to replead their third-party beneficiary, respondeat superior, and negligence claims based on facts revealed in discovery.
Where summary judgment is appropriate on the pleadings but discovery reveals facts suggesting a viable cause of action not yet pleaded, the trial court should enter summary judgment with leave to amend rather than denying amendment.
[1] When summary judgment is properly entered on existing pleadings but discovery reveals facts suggesting an unpleaded viable cause of action, the court should enter summary…
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Join FLexlaw to unlock all legal intelligence“[W]here a summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pleaded, or a better one than that pleaded, the proper procedure is to enter the summary judgment with leave to the party to amend.”
Court citing Hart Properties, Inc. v. Slack and Allen v. Port Everglades Auth. for the proper procedure when summary judgment is warranted but discovery suggests unpleaded claims.
Martin and Brenda Grosso sued AT&T alleging third-party beneficiary contractual obligations, respondeat superior, and negligence. The trial court gran…
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MAY, MELANIE G., Associate Judge.
Amidst allegations of third-party beneficiary contractual obligations, respondeat superi-or, and negligence, this appeal raises the basic issue of pleading and proving a viable cause of action in the face of a motion for summary judgment. The trial court granted the defendant’s motion for summary judg ment, but denied the plaintiffs motion for leave to amend. From this judgment, the plaintiffs appeal.
We agree that the trial court appropriately granted summary judgment based on the pleadings before it. However, the deposition of Mr. Grosso and the plaintiffs’ response to the motion for summary judgment raised facts that indicate that the plaintiffs should be given an opportunity to amend. “[Wjhere a summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pleaded, or a better one than that pleaded, the proper procedure is to enter the summary judgment with leave to the party to amend.” Hart Properties, Inc. v. Slack, 159 So. 2d 286, 240 (Fla.1963); and Allen v. Port Everglades Auth., 553 So. 2d 1341 (Fla. 4th DCA 1989).
We therefore affirm the summary judgment without prejudice to the plaintiffs to amend their complaint.
DELL and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mosley v. Am. Med. Int'l, Inc., 712 So. 2d 1149 (Fla. 4th DCA 1998)…t may have a cause of action not pleaded, we have held the proper procedure is to grant summary judgment with leave to the party to amend. Allen v. Port Everglades Auth., 553 So. 2d 1341, 1343 (Fla. 4th DCA 1989); Grosso v. American Tel. & Tel. Co., 691 So. 2d 604 (Fla. 4th DCA 1997). Accordingly, we also affirm the summary judgment as to counts VI and VII without prejudice to appellant to amend his complaint within a reasonable period of time as determined by the trial court. GLICKSTEIN, DELL and POLEN, JJ…
Authorities Cited
- Allen v. Port Everglades Auth., 553 So. 2d 1341 (Fla. 4th DCA 1989)
- Shingledecker v. Spencer, 159 So. 2d 286 (La. 1964)