Wells Fargo Armored Services Corp. v. Sunshine Sec. and Detective Agency, Inc.

• Decision Date: 17 January 1991
• Docket Number: No. 73835,73835
• Citation: 16 Fla. L. Weekly 95,575 So.2d 179
• Parties: 16 Fla. L. Weekly 95 WELLS FARGO ARMORED SERVICES CORPORATION, Petitioner, v. SUNSHINE SECURITY AND DETECTIVE AGENCY, INC., et al., Respondents.
• Court: Florida Supreme Court

Page 179

575 So.2d 179

16 Fla. L. Weekly 95

WELLS FARGO ARMORED SERVICES CORPORATION, Petitioner, v. SUNSHINE SECURITY AND DETECTIVE AGENCY, INC., et al., Respondents.

No. 73835.

Supreme Court of Florida.

Jan. 17, 1991.

Rehearing Denied March 15, 1991.

Rex B. Guthrie, Miami, James V. Johnstone, Fort Pierce, and Louise H. McMurray of Louise H. McMurray, P.A., Miami, for petitioner.

Mallory H. Horton, Coral Gables, for respondents.

PER CURIAM.

We have for review Wells Fargo Armored Services Corp. v. Sunshine Security & Detective Agency, 538 So.2d 92 (Fla. 3d DCA 1989), based on express and direct conflict with Brumby v. City of Clearwater, 108 Fla. 633, 149 So. 203 (1933), and Slavin v. McCann Plumbing Co., 73 So.2d 902 (Fla.1954). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

On December 13, 1983, employees of Wells Fargo Armored Services Corporation were robbed while making a pickup at the Hialeah branch of the Intercontinental Bank. The next day an employee of Sunshine Security and Detective Agency, which provided guard services at the bank, confessed to participation in the robbery. After covering Intercontinental's losses, plus interest, Wells Fargo received an assignment of the right to proceed against Sunshine Security.

On April 13, 1984, Wells Fargo filed suit against Sunshine Security. The complaint essentially alleged that Sunshine Security was liable for the guard's actions under the doctrine of respondeat superior. A default judgment was entered against Sunshine Security on October 30, 1984, after Sunshine Security failed to serve or file any paper in the cause. Later, Sunshine Security alleged that it had never received proper service of process prior to entry of the default judgment.

After a good deal of intervening motion practice, Sunshine Security appealed to the Third District. The district court ignored the issues surrounding the default judgment and found that the original complaint had failed to state a cause of action. As grounds, the Third District concluded that the guard who had participated in the robbery was acting beyond the scope of his agency relationship with Sunshine Security. The Third District rejected all remaining grounds for reversal and remanded the cause for further proceedings. Sunshine Sec. & Detective Agency v. Wells Fargo Armored Servs. Corp., 496 So.2d 246 (Fla. 3d DCA 1986).

After receiving the mandate, the trial court dismissed the original complaint on January 8, 1987. Subsequently, Wells Fargo filed an amended complaint and a motion to add new parties and theories of recovery. Sunshine Security then filed a motion to dismiss on grounds that the statute of limitations precluded recovery. Later, the trial court granted this motion.

On appeal, the Third District affirmed the result but did so based on the law-of-the-case doctrine. Reviewing the record, the Third District concluded that the amended complaint "contain[ed] the same causes of action ruled upon in the prior appeal and add[ed] new, different theories of recovery not previously asserted." Wells Fargo, 538 So.2d at 93. The district court expressly found that the law-of-the-case doctrine precluded reopening the case and filing an amended complaint on remand. Id. at 93-94.

We reject this conclusion. The law-of-the-case doctrine was meant to apply to matters litigated to finality, not to matters that remain essentially unresolved due to the erroneous ruling of a lower court. Normandy Beach Properties Corp. v. Adams, 126 Fla. 844, 171 So. 796 (1937). Here, the default judgment was held to be erroneous on grounds the original complaint failed to state a cause of action. Wells Fargo, 496 So.2d at 246. The effect was to return this proceeding to the lower court as though the erroneous ruling never had been made. Stossel v. Gulf Life Ins. Co., 123 Fla. 227, 166 So. 821 (1936). In other words, the trial court was obliged to treat this case as though, without regard to the intervening appeal, a complaint had been filed that failed to state a cause of action.

In Brumby, we confronted a situation in which a complaint was dismissed for failure to state a cause of action. We then noted that

unless the complainant can within a near date to be fixed by the Circuit Court so amend his bill of complaint ... [to state a cause], the bill of complaint should be dismissed.

Brumby, 108 Fla. at 634, 149 So. at 204. Clearly, Brumby contemplated a right to amend under the stated circumstances. Indeed, Florida recognizes a rule favoring a right of amendment after a party has failed to state a cause of action. Slavin. The denial of a right to amend simply because prior attempts to state a cause of action have failed may be deemed an abuse of discretion. Wilensky v. Perell, 72 So.2d 278 (Fla.1954).

The court below erred in saying that "plaintiff is precluded by the doctrine of law of the case from reopening the case and filing an amended complaint upon remand containing the same causes of action ruled upon in the prior appeal and adding new, different theories of...