JJ Gumberg Co. v. Janis Services, Inc., 4D02-1953.
| Decision Date | 28 May 2003 |
| Docket Number | No. 4D02-1953.,4D02-1953. |
| Citation | 847 So.2d 1048 |
| Parties | J.J. GUMBERG CO., a Delaware corporation, Appellant, v. JANIS SERVICES, INC., a Florida corporation, and Colonia Insurance Company, a Delaware corporation, Appellees. |
| Court | Florida District Court of Appeals |
Caryn L. Bellus and Valentina Tejera of Kubicki Draper, Miami, for appellant.
Jerome A. Pivnik of Pivnik & Nitsche, P.A., Miami, for appellee Janis Services, Inc.
Appellant, J.J. Gumberg Co. (Gumberg), appeals from the dismissal with prejudice of the complaint it filed against appellee, Janis Services, Inc. (Janis), in October 2001. We affirm in part and reverse in part.
In May 1994, Janis entered into a construction contract to remodel the food court at the Coral Ridge Mall which was maintained and operated by Gumberg. On June 29, 1994, an employee of Janis, Samuel Green, was injured while working at the Mall. Green filed suit against Gumberg in case number 97-12195 and Gumberg filed a third party complaint containing three counts against Janis. Count I was for contractual indemnity, Count II was for contribution, and Count III was for common law indemnity. Upon Janis's motion to dismiss, Counts II and III were dismissed with prejudice and the remaining count, alleging contractual indemnity, was set for trial in January 2001.
Shortly before trial, Gumberg filed a motion for leave to amend its third party complaint to amend its claim for contractual indemnity and add two claims for breach of contract, and one for declaratory relief. The trial court denied the motion to amend. Gumberg settled with Green and the trial court entered a partial order of dismissal. Gumberg renewed its motion to amend which the trial court denied. The contractual indemnity suit against Janis remains pending.
In October 2001, Gumberg filed a new complaint against Janis and Colonia Insurance Company, Janis's insurance company. There were two counts against Janis for breach of the construction contract and one count for declaratory relief against Janis and Colonia. These counts were essentially the same as three of the counts proposed in Gumberg's motion to amend in case number 97-12195. This new cause, case number 01-17838, was transferred to the trial judge presiding over case number 97-12195.
Janis then filed a motion to dismiss Gumberg's new complaint arguing that each claim was barred by the statute of limitations1 and further that the claims should be dismissed for improper splitting of causes of action. The trial court granted the motion to dismiss with prejudice as to all three counts without stating the grounds for its dismissal.
The two claims for breach of contract are based upon Gumberg's allegations that Janis breached the provisions of the contract requiring Janis to obtain liability insurance and to keep the construction area clean and follow safety precautions. In Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000), the court held that Assuming that Janis breached the contract by failing to obtain liability insurance and by failing to clean up and maintain safety precautions at the time Green was injured in June of 1994, all the elements for a cause of action for breach of contract existed. Therefore, the trial court correctly dismissed these two claims as they are...
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