410 F.2d 928 (5th Cir. 1969), 26805, Roger Lee, Inc. v. Trend Mills, Inc.

Docket Nº:26805
Citation:410 F.2d 928
Party Name:ROGER LEE, INC., a Florida corporation, Plaintiff-Appellant, v. TREND MILLS, INC., a Georgia corporation, Defendant-Appellee.
Case Date:May 06, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 928

410 F.2d 928 (5th Cir. 1969)

ROGER LEE, INC., a Florida corporation, Plaintiff-Appellant,

v.

TREND MILLS, INC., a Georgia corporation, Defendant-Appellee.

No. 26805

United States Court of Appeals, Fifth Circuit.

May 6, 1969

Julian R. Benjamin, Cassel & Benjamin, Miami, Fla., for appellant.

Daniel Neal Heller, Miami, Fla., for appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Page 929

PER CURIAM:

This appeal 1 is from the district court's order granting judgment on the pleadings 2 in favor of the defendant-appellee based upon the Florida statute of limitations after the Florida statute was pleaded as an affirmative defense. We affirm.

This suit, commenced in a Florida state court and properly removed to the district court below by reason of diversity of citizenship, 3 was founded on a claim of breach of implied warranty as to the quality and condition of carpets manufactured by the appellee and sold to the plaintiff. The original complaint contained a demand for punitive damages, which was stricken upon motion. Appellant amended his complaint by adding six paragraphs to it. A new separate count was not added but punitive damages were again sought. In essence, the amendment alleged that appellee was grossly negligent in placing certain labels on the carpets sold to appellant because the labels belonged to another person and further alleged gross negligence in using certain named labels on the carpets without the consent of the owner of the labels. The amendment also alleged that the appellee mislabeled and manufactured the carpets in reckless disregard of the consequences inherent in the delivery of the carpets to the appellant. No injury to appellant was alleged as a result of appellee's alleged negligence. The amendment and the claim for punitive damages were stricken upon motion.

The appellee then filed its answer alleging the statute of limitations 4 and moved for judgment on the pleadings. This motion was granted, and final judgment was entered in favor of appellee against the defendant. This appeal followed.

It is clear that the cause of action for breach of warranty is an action purely ex contractu under Florida law. Carter v. Hector Supply Co. (Fla.1961), 128 So.2d 390; Public Administrator of New York County v. Curtiss-Wright Corp. (S.D.N.Y.1963), 224 F.Supp. 236. To such actions the Florida three-year...

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