Vella v. Salaues

• Decision Date: 16 October 2019
• Docket Number: No. 3D18-1643,3D18-1643
• Parties: John VELLA, Appellant, v. Gabriel SALAUES, et al., Appellees.
• Court: Florida District Court of Appeals

290 So.3d 946

John VELLA, Appellant,

v.Gabriel SALAUES, et al., Appellees.

No. 3D18-1643

District Court of Appeal of Florida, Third District.

Opinion filed October 16, 2019

Rehearing Denied December 6, 2019

Law Offices of Vincent Duffy, P.A. and Vincent J. Duffy ; Arthur J. Morburger, Miami, for appellant.

Kubicki Draper, P.A. and Michael C. Clarke, and Andrew T. Lynn (Tampa), for appellees.

Before FERNANDEZ, MILLER, and GORDO, JJ.

MILLER, J.

Appellant, John Vella, challenges a summary final judgment entered in favor of appellees, Gabriel and Ivana Salaues. On appeal, Vella contends the lower tribunal erred in denying leave to file an amended complaint, and summary judgment was prematurely entered, in light of pending discovery. For the reasons explicated below, we discern no error and affirm.

FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

In 2015, Mauricio Berestan employed Vella to assist him in performing contracted restoration and repairs on an inboard vessel owned by the Salaueses and docked behind their residence in North Miami Beach, Florida. The Salaueses did not actively oversee or supervise the contracted tasks.

On January 22, 2015, while reinstalling a generator inside the engine room, Vella detected the odor of gasoline. Berestan assuaged any concerns and directed Vella to continue executing the reinstallation. Shortly thereafter, an explosion occurred on the craft. Consequently, Vella sustained significant burns on his face and body.

In early 2016, Vella filed suit against Berestan and the Salaueses, asserting a claim of negligence.¹ Vella theorized that the Salaueses owed and breached a duty to ensure both the vessel and generator were maintained in a reasonably safe condition. Later that year, Vella amended his complaint, alleging vicarious liability against other parties. Following the closure of the pleadings, the lower tribunal issued an order, scheduling the matter for trial on June 25, 2018, some seven months later. The court imposed firm discovery deadlines.

On May 1, 2018, the Salaueses filed a motion for summary judgment. The motion was scheduled for hearing on June 21, 2018. Two weeks prior to the summary judgment hearing, Vella filed a motion for leave to file an amended complaint, seeking to add a theory that the Salaueses engaged in negligent hiring practices. The trial court denied leave to amend, along with a subsequent ore tenus motion for continuance of the summary judgment hearing, and, ultimately, granted summary judgment in favor of the Salaueses. The instant appeal ensued.

STANDARD OF REVIEW

"The granting or denying of [amendments to the pleadings or] a motion for continuance is within the discretion of the trial judge and a gross or flagrant abuse of this discretion must be demonstrated by the complaining party before this court will substitute its judgment for that of the trial judge." Stern v. Four Freedoms Nat'l Med. Servs., Co., 417 So. 2d 1085, 1086 (Fla. 3d DCA 1982) (quoting Edwards v. Pratt, 335 So. 2d 597, 598 (Fla. 3d DCA 1976) ).

LEGAL ANALYSIS

Vella contends the lower tribunal abused its discretion in denying his motion for leave to file his second amended complaint. "[L]eave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile." Hemingway v. Bresney, 733 So. 2d 1135, 1136 (Fla. 4th DCA 1999) (citation omitted). However, "[w]hile the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments [where the same materially varies from the relief initially sought, or] where a case has progressed to a point that the liberality ordinarily to be indulged has diminished." Alvarez v. DeAguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981) (internal citations omitted). This is because "in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So. 2d 1116, 1122 (Fla. 5th DCA 1983) (citation omitted).

Here, following two years of contentious litigation, on the proverbial "eve" of the summary judgment hearing, immediately preceding the scheduled trial date, Vella sought to inject an entirely novel theory of prosecution into his lawsuit. Under these circumstances, the prejudice to the Salaueses is evident.

Further, as a body of sound, binding Florida jurisprudence provides "[a]s a general rule, ‘a property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work,’ " Fuentes v. Sandel, Inc., 189 So. 3d 928, 932 (Fla. 3d DCA 2016) (quoting Strickland v. TIMCO Aviation Servs., Inc., 66 So. 3d 1002, 1006 (Fla. 1st DCA 2011) ), and, here, the record was devoid of the active participation, exercise of direct control, or failure to warn of concealed conditions by the Salaueses, the newly invoked premise was not grounded in the law. See Restatement (Second) of Torts § 414 cmt. a (Am. Law. Inst. 1965) ("If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant."). Accordingly, we conclude that, in denying leave to amend, the trial court acted within the bounds of its discretion.² See San Martin v. Dadeland Dodge, Inc., 508 So. 2d 497, 498 (Fla. 3d DCA 1987) ("We affirm the order appealed from because (a) the proposed fraud count was materially different from the other counts of the complaint; (b) the amendment proposal was made on the eve of the trial ...").

Vella further assigns error upon the failure by the lower tribunal to grant a continuance of the summary judgment hearing in order to permit further discovery. "A party seeking a continuance bears the burden of showing, by affidavit, the existence and availability of other evidence, its relevance, the efforts taken to produce it, and that any failure to do so is not the result of the movant's inexcusable delay." Carbonell v. BellSouth Telecomms., Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996) (citations omitted). Here, Vella "offered no such support and, therefore, we find no abuse of...