Highlands County School Bd. v. K. D. Hedin Const., Inc., 79-1730
| Decision Date | 21 March 1980 |
| Docket Number | No. 79-1730,79-1730 |
| Citation | 382 So.2d 90 |
| Parties | HIGHLANDS COUNTY SCHOOL BOARD, Appellant, v. K. D. HEDIN CONSTRUCTION, INC., a Florida Corporation, Insurance Company ofNorth America, a corporation, Eoghan N. Kelley, Continental Casualty Company, aForeign Corporation, and the Celotex Corporation, a corporation, Cotton StatesMutualInsurance Company, and E. C. Goldman, Inc., a Florida Corporation, Appellees. |
| Court | Florida District Court of Appeals |
J. Bert Grandoff, of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P. A., Tampa; and James F. McCollum, Sebring, for appellant.
Donald J. Gifford and Peter J. Grilli of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee, Celotex Corp.
The Highlands County School Board appeals from an order dismissing its amended complaint with prejudice. We reverse.
The School Board filed a complaint against appellee and others. As to appellee, the School Board alleged separate counts based on negligence, strict liability and gross negligence. These claims arose out of allegedly defective conditions in the roof of the Lake Placid High School. The roof was constructed of products which had been manufactured by appellee and sold to a subcontractor who eventually installed them on the high school construction project.
The School Board filed an amended complaint, and appellee moved to dismiss for failure to state a cause of action. The trial court granted the motion and entered an order dismissing all counts with prejudice.
The School Board argues on appeal that its amended complaint should not have been dismissed with prejudice, but that it should have been allowed to replead. We agree.
The trial court properly dismissed the amended complaint for failure of the School Board to allege sufficient ultimate facts. However, dismissal with prejudice cannot be justified on this basis alone. Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla.2d DCA 1978). Neither of those circumstances is present in this case. The School Board has previously amended its complaint only once. Further, although there was no privity of contract between the School Board and appellee, this court has recently held that absence of contractual privity is no bar to a tort claim, provided the plaintiff can establish the existence of a duty...
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Boca Burger, Inc. v. Forum
...amended complaint); Adams v. Knabb Turpentine Co., 435 So.2d 944, 946 (Fla. 1st DCA 1983) (same); Highlands County Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So.2d 90, 91 (Fla. 2d DCA 1980) As the Fourth District held, a court has no discretion to deny an amendment under the first sentence o......
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Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005)
...amended complaint); Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 1983) (same); Highlands County Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So. 2d 90, 91 (Fla. 2d DCA 1980) As the Fourth District held, a court has no discretion to deny an amendment under the first sentence......
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Cedars of Lebanon Hosp. Corp. v. European X-Ray Distributors of America, Inc.
...Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981), rev. denied, 417 So.2d 328 (Fla.1982); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980); Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979); Na......
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Wells Fargo Armored Services Corp. v. Sunshine Sec. and Detective Agency, Inc.
...or the complaint is clearly not amendable. Wiggins v. Tart, 407 So.2d 1094 (Fla. 1st DCA 1982); Highlands County School Bd. v. K.D. Hedin Constr., Inc., 382 So.2d 90 (Fla. 2d DCA 1980). Here, there was no abuse because Wells Fargo had never before sought to amend its complaint. As noted in ......