Club Eden Roc, Inc. v. Fortune Cookie Restaurant, Inc.
| Decision Date | 24 June 1986 |
| Docket Number | No. 86-622,86-622 |
| Citation | 11 Fla. L. Weekly 1415,490 So.2d 210 |
| Parties | 11 Fla. L. Weekly 1415 CLUB EDEN ROC, INC., Petitioner, v. FORTUNE COOKIE RESTAURANT, INC., Respondent. |
| Court | Florida District Court of Appeals |
Simon, Schindler, Hurst & Sandberg and Thomas M. Pflaum, Miami, for petitioner.
H. Lawrence Asher, North Miami Beach, for respondent.
Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
Petitioner seeks a writ of certiorari to review an order of the trial court which denied petitioner's motion to dismiss and/or strike a part of the second amended counterclaim related to punitive damages. We note a conflict in decisions of the several district courts of appeal as to entertaining a petition for certiorari to review an order denying a motion to strike or dismiss a claim for punitive damages, see Sunrise Olds-Toyota, Inc. v. Monroe, 476 So.2d 240 (Fla. 5th DCA 1985); Jaimot v. Media Leasing Corp., 457 So.2d 529 (Fla. 5th DCA 1984), which support common law certiorari review, but see Martin-Johnson, Inc. v. Savage, 488 So.2d 567 (Fla. 1st DCA 1986), on rehearing which deny such. We believe we should exercise our discretion to entertain such a petition to review orders which fail to strike or dismiss a claim for such damages because the injury that might be occasioned to a defendant who must respond to punitive damage discovery cannot be remedied on final appeal, whereas, the converse would be true of a trial court order that denied or dismissed a punitive damage claim.
Petitioner is the owner of the Eden Roc Hotel on Miami Beach. Contained within the hotel is a restaurant operated by respondent, as lessee. In June of 1985, petitioner brought a suit seeking to eject respondent on the grounds that respondent no longer had a valid lease to operate the subject restaurant, and in the alternative, that if there was a valid lease, it had been breached by respondent. Respondent counterclaimed, alleged that there was a valid lease, and alleged that petitioner had breached the lease. Respondent demanded punitive damages based on the manner in which petitioner allegedly breached the lease. Petitioner moved to dismiss the punitive damage claim on the ground that respondent's claims arose from an alleged breach of contract. Respondent claims that its counterclaim clearly states a cause of action in tort. The motion to dismiss and/or strike respondent's second amended counterclaim was denied and this petition followed.
The counterclaim does not state a proper basis for punitive damages because it alleges a...
To continue reading
Request your trial
-
TRG Desert Inn Venture, Ltd. v. Berezovsky
...the procedural requirements of section 768.72. Globe Newspaper Co., 658 So.2d at 519–20.Although in Club Eden Roc, Inc. v. Fortune Cookie Restaurant, Inc., 490 So.2d 210 (Fla. 3d DCA 1986), this Court entertained a petition for certiorari to review an order denying a motion to dismiss a cla......
- Flea Market, U.S.A., Inc. v. Cohen, 86-16
-
Appellate standards of review.
...So. 2d 95 (Fla. 1994), cert. denied, 513 U.S. 1159 (1995) (motion made before, and during, trial); Flea Market, U.S.A., Inc. v. Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986) (motion made on the eve of trial); see also Sliney v. State, 699 So. 2d 662 (Fla. Consolidations and Severances. Decisions......