DIANE KARN AND DONOVAN MICHAEL, APPELLANTS,
v.
COLDWELL BANKER RESIDENTIAL REAL ESTATE, INC. AND THOMAS A. PAULETTI, JR., APPELLEES
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Appellants Karn and Michael appealed a summary judgment in favor of Coldwell Banker. The court reversed the judgment, holding that the trial court abused its discretion by refusing to grant leave to amend the complaint, even though it properly rejected claims barred by the economic loss rule.
The court held that the trial court abused its discretion by denying leave to amend, as Karn and Michael had received leave to amend only once and solely for enumeration purposes. The court also held that claims for negligent breach of contract and breach of fiduciary duty are barred by the economic loss rule absent conduct resulting in personal injury or property damage.
[1] A successor judge properly assigned to a case may vacate or vary interlocutory orders made earlier by another judge.
[2] Without conduct resulting in personal injury or property damage, there can be no independent tort flowing from a contractual breach that would justify a tort claim solely…
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Join FLexlaw to unlock all legal intelligence“[W]ithout some conduct resulting in personal injury or property damage, there can be no independent tort flowing from a contractual breach which would justify a tort claim solely for economic losses.”
Establishes the economic loss rule barring tort claims for purely economic losses arising from contract breaches
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Join FLexlaw to unlock all legal intelligenceKarn and Michael filed suit against Coldwell Banker Residential Real Estate, Inc. and Thomas A. Pauletti, Jr. The trial court entered summary judgment…
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POLEN, Judge.
Diane Earn and Donovan Michael appeal from a final summary judgment entered in favor of Coldwell Banker Residential Real Estate, Inc (Coldwell Banker). We reject Earn and Michael’s contention Judge Andrews acted outside his authority as a successor judge in granting Coldwell Banker’s motion for final summary judgment. A successor judge properly assigned to a case may vacate or vary interlocutory orders made earlier by another judge. Whitlock v. Drazinic, 622 So. 2d 142 (Fla. 5th DCA 1993). We also reject Earn and Michael’s argument their counts for “negligent breach of contract” and breach of fiduciary duty were not barred by the economic loss rule. “[WJithout some conduct resulting in personal injury or property damage, there can be no independent tort flowing from a contractual breach which would justify a tort claim solely for economic losses.” AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So. 2d 180, 181-182 (Fla.1987).
We reverse the final summary judgment, however, because the trial court abused its discretion in failing to grant Earn and Michael leave to amend their complaint, a request they sought by way of motion for rehearing before final summary judgment was entered. See Johnson & Bailey Architects P.C. v. Southeast Brake Corp., 517 So. 2d 776 (Fla. 2d DCA 1988). “As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991). Earn and Michael were granted leave to amend only once, and then solely for the purpose of enumerating claims and paragraphs. Under these circumstances they should have been granted leave to amend their complaint.
REVERSED and REMANDED.
GLICKSTEIN and GUNTHER, JJ., concur.
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YUN Enters., Ltd. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003)…buse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Gate Lands Co.; Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So. 2d 680 (Fla. 4th DCA 1998); Assad Yun had not amended its complaint pri- or to its request for leave to replace Exhibit B with Exhibit E in the attachments to its complaint. According to Yun, this document is the final draft (Exhibit B being an earlier dr…
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Hull & Co., Inc. v. Clair Thomas, 834 So. 2d 904 (Fla. 4th DCA 2003)…78 (Fla.1971). However, prior to final judgment, a successor judge has the power to vacate or modify a predecessor’s interlocutory rulings, such as an order on a motion for summary judgment. See Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So. 2d 680, 680 (Fla. 4th DCA 1998); Wasa Int’l Ins. Co. v. Hurtado, 749 So. 2d 579, 580 (Fla. 3d DCA 2000); Stepp v. State Farm Fire & Cas. Co., 656 So. 2d 494, 497 (Fla. 1st DCA 1995); Collier v. Dade County, 417 So. 2d 695, 696 n. 1 (Fla. 3d DCA 1982) (reje…
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Integrated Broad. Servs., Inc. v. Mitchel, 931 So. 2d 1073 (Fla. 4th DCA 2006)…the sanctions and the relevant dates after the court announced it was granting summary judgment, but before a final judgment had been entered. The court should have granted the request to amend. Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So. 2d 680 (Fla. 4th DCA 1998) (the trial court abused its discretion in not allowing plaintiff to amend by way of motion for rehearing of order granting summary judgment). The summary judgment is affirmed as it relates to plaintiffs claims other than the dam…
Previewing 3 of 6 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)
- Bill Williams AIR Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302 (Fla. 1st DCA 1991)
- Johnson & Bailey Architects, P.C. v. Se. Brake Corp., 517 So. 2d 776 (Fla. 2d DCA 1988)
- Trester L. Bryson v. State, 622 So. 2d 142 (Fla. 5th DCA 1993)
- Whitlock v. Stephan E. Drazinic, M.D. & Stephan E. Drazinic, M.D., P.A., 622 So. 2d 142 (Fla. 5th DCA 1993)