COUNTY OF BREVARD, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, PETITIONER,
v.
MIORRELLI ENGINEERING, INC. AND HARTFORD FIRE INSURANCE COMPANY, RESPONDENTS
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The court granted in part a petition for certiorari requiring the lower court to enter an order granting partial summary judgment consistent with the Florida Supreme Court's prior decision, but denied the petition's challenge to the lower court's discretionary allowance of amendment to a breach of contract count.
A trial court does not abuse its discretion by permitting amendment of a breach of contract count that was not attacked by a prior summary judgment motion, even if the amended pleading may later be subject to dismissal or other defenses.
[1] A trial court does not abuse its discretion in permitting amendment of a pleading count that was not attacked by a prior summary judgment motion, even if the amended plea…
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Join FLexlaw to unlock all legal intelligenceBrevard County sought certiorari review of a lower court's order that granted partial summary judgment in accordance with a prior Florida Supreme Cour…
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GRIFFIN, C.J.
To the extent that the petition we examine seeks to require the lower court to enter its order granting partial summary judgment in accordance with the opinion of the Florida Supreme Court in Brevard County v. Miorelli Engineering, Inc., 703 So. 2d 1049 (Fla.1997) and this court’s order of January 27, 1998, the petition is granted. Such an order should have been entered. To the extent that the petition complains of the lower court’s decision to permit amendment of the remaining count sounding in breach of contract, we find no abuse of the court’s discretion and no basis to issue a writ of certiorari. As we read the record supplied, the court has not ruled on the merits of the most recent pleading, nor has it decided whether any part of the pleading may purport to allege a breach of express contract but fails to do so. Nor has it ruled on whether such an amended pleading may be barred in whole or in part by judicial estoppel or other defense. It simply has allowed an amendment to the count for breach of express contract that was not attacked by the summary judgment previously considered. .If the amended claim for breach of contract is vulnerable to a motion to dismiss, the requirement to file one is not the sort of irreparable harm that will support certiorari.
Petition for Writ of Certiorari GRANTED in part; and DENIED in part.
COBB and HARRIS, JJ., concur.