Ecological Science Corp. v. Boca Ciega Sanitary Dist., No. 74-1079

CourtCourt of Appeal of Florida (US)
Writing for the CourtBOARDMAN; HOBSON, Acting C. J., and GRIMES
Citation317 So.2d 857
PartiesECOLOGICAL SCIENCE CORPORATION, a Florida Corporation, f/k/a Southern Gulf Utilities, Inc., Appellant, v. BOCA CIEGA SANITARY DISTRICT and the Board of County Commissioners of Pinellas County, as its governing body, Appellees.
Docket NumberNo. 74-1079
Decision Date08 August 1975

Page 857

317 So.2d 857
ECOLOGICAL SCIENCE CORPORATION, a Florida Corporation, f/k/a Southern Gulf Utilities, Inc., Appellant,
v.
BOCA CIEGA SANITARY DISTRICT and the Board of County Commissioners of Pinellas County, as its governing body, Appellees.
No. 74-1079.
District Court of Appeal of Florida, Second District.
Aug. 8, 1975.

Page 858

Paul C. Huck of Aurell & Huck, Miami, and Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellant.

Daniel N. Martin of Delzer, Edwards & Martin, Port Richey, and Adrian S. Bacon, of Bacon & Hanley, St. Petersburg, for appellees.

BOARDMAN, Judge.

The parties to this instant appeal have previously been before us. A prior suit was filed by the appellant against the appellees in 1966 for breach of contract. Appellant was the general contractor for the construction of a sanitary sewer system built for the appellees. The trial court granted a summary judgment against appellant as to Counts II and III. This court reversed the summary judgment in Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, Fla.App.2d, 1970, 238 So.2d 458, cert. den. Fla.1970, 240 So.2d 813.

Upon remand, appellant sought leave of the trial court to amend its complaint and to file supplemental pleadings to include a claim allegedly arising subsequent to the filing of the suit. The trial court, after hearing, denied the motion assigning as grounds that it was '. . . of the opinion that too much time has elapsed and the issue have been framed for such a period of time that it is now inappropriate to bring into the controversy an additional cause of action. . . .' In view of the trial court's ruling appellant then filed the present action. In response, appellees filed a motion to consolidate the two suits and a motion to dismiss based on the following defenses, to wit: election of remedies, splitting a cause of action and res judicata. The hearing on the said motions was conducted by a judge other than the judge

Page 859

who presided over the first suit. Counsel for appellees urged that the initial judge, who was thoroughly familiar with the case and the issues involved, should hear all matters. Counsel for appellant, on the other hand, was satisfied that the second judge should rule on whether a motion to dismiss was the proper vehicle in which to raise the above defenses. The trial court, after hearing, granted the motion to dismiss with leave to amend. Appellant chose not to amend and final judgment...

To continue reading

Request your trial
10 practice notes
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1996
    ...where the affirmative defense does not appear on the face of the prior pleading. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to ......
  • Noonan-Judson v. Surrency, NOONAN-JUDSO
    • United States
    • Court of Appeal of Florida (US)
    • February 9, 1996
    ...P.A. v. Farmers Bank & Trust Co. of Kentucky, 498 So.2d 984 (Fla. 1st DCA 1986); Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975); First Bank & Trust Co. v. Mellay, 156 So.2d 518 (Fla. 2d DCA 1963). Where an issue is not presented by pleading or litiga......
  • Mays v. Twigg, No. 88-03549
    • United States
    • Court of Appeal of Florida (US)
    • March 22, 1989
    ...must confine itself to the allegations within the four corners of the complaint. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). The allegations of the original complaint seeking a determination of paternity cannot be used to bolster the amended comp......
  • Airport Sign Corp. v. Dade County, No. 80-1500
    • United States
    • Florida District Court of Appeals
    • July 7, 1981
    ...complaint. Pizzi v. Central Bank and Trust Company, 250 So.2d 895 (Fla.1971); Ecological Science Corp. v. Boca Ciega Sanitary District, 317 So.2d 857 (Fla. 2d DCA 1975); Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla. 2d DCA 1975); Whitfield v. Whitfield, 161 So.2d 256 (......
  • Request a trial to view additional results
10 cases
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1996
    ...where the affirmative defense does not appear on the face of the prior pleading. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to ......
  • Noonan-Judson v. Surrency, NOONAN-JUDSO
    • United States
    • Court of Appeal of Florida (US)
    • February 9, 1996
    ...P.A. v. Farmers Bank & Trust Co. of Kentucky, 498 So.2d 984 (Fla. 1st DCA 1986); Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975); First Bank & Trust Co. v. Mellay, 156 So.2d 518 (Fla. 2d DCA 1963). Where an issue is not presented by pleading or litiga......
  • Mays v. Twigg, No. 88-03549
    • United States
    • Court of Appeal of Florida (US)
    • March 22, 1989
    ...must confine itself to the allegations within the four corners of the complaint. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). The allegations of the original complaint seeking a determination of paternity cannot be used to bolster the amended comp......
  • Airport Sign Corp. v. Dade County, No. 80-1500
    • United States
    • Florida District Court of Appeals
    • July 7, 1981
    ...complaint. Pizzi v. Central Bank and Trust Company, 250 So.2d 895 (Fla.1971); Ecological Science Corp. v. Boca Ciega Sanitary District, 317 So.2d 857 (Fla. 2d DCA 1975); Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla. 2d DCA 1975); Whitfield v. Whitfield, 161 So.2d 256 (......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT