County of Brevard v. Miorrelli Engineering, Inc.

District Court of Appeal of Florida

County of Brevard v. Miorrelli Engineering, Inc.

721 So. 2d 1223, 1998 Fla. App. LEXIS 15945, 1998 WL 880653

CourtDistrict Court of Appeal of Florida

DecidedDecember 18, 1998

DocketNo. 98-2285

StatusPublished

This text of 721 So. 2d 1223 (County of Brevard v. Miorrelli Engineering, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

County of Brevard v. Miorrelli Engineering, Inc., 721 So. 2d 1223, 1998 Fla. App. LEXIS 15945, 1998 WL 880653 (Fla. Ct. App. 1998).

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Opinion

GRIFFIN, C.J.

To the extent that the petition we examine seeks to require the lower court to enter its order granting partial summary judgment in accordance with the opinion of the Florida Supreme Court in Brevard County v. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla.1997) and this court’s order of January 27, 1998, the petition is granted. Such an order should have been entered. To the extent that the petition complains of the lower court’s decision to permit amendment of the remaining count sounding in breach of contract, we find no abuse of the court’s discretion and no basis to issue a writ of certiorari. As we read the record supplied, the court has not ruled on the merits of the most recent pleading, nor has it decided whether any part of the pleading may purport to allege a breach of express contract but fails to do so. Nor has it ruled on whether such an amended pleading may be barred in whole or in part by judicial estop-pel or other defense. It simply has allowed an amendment to the count for breach of express contract that was not attacked by the summary judgment previously considered. .If the amended claim for breach of contract is vulnerable to a motion to dismiss, the requirement to file one is not the sort of irreparable harm that will support certiorari.

Petition for Writ of Certiorari GRANTED in part; and DENIED in part.

COBB and HARRIS, JJ., concur.

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GRIFFIN, C.J.

To the extent that the petition we examine seeks to require the lower court to enter its order granting partial summary judgment in accordance with the opinion of the Florida Supreme Court in Brevard County v. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla.1997) and this court’s order of January 27, 1998, the petition is granted. Such an order should have been entered. To the extent that the petition complains of the lower court’s decision to permit amendment of the remaining count sounding in breach of contract, we find no abuse of the court’s discretion and no basis to issue a writ of certiorari. As we read the record supplied, the court has not ruled on the merits of the most recent pleading, nor has it decided whether any part of the pleading may purport to allege a breach of express contract but fails to do so. Nor has it ruled on whether such an amended pleading may be barred in whole or in part by judicial estop-pel or other defense. It simply has allowed an amendment to the count for breach of express contract that was not attacked by the summary judgment previously considered. .If the amended claim for breach of contract is vulnerable to a motion to dismiss, the requirement to file one is not the sort of irreparable harm that will support certiorari.

Petition for Writ of Certiorari GRANTED in part; and DENIED in part.

COBB and HARRIS, JJ., concur.

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Bluebook (online)

721 So. 2d 1223, 1998 Fla. App. LEXIS 15945, 1998 WL 880653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-brevard-v-miorrelli-engineering-inc-fladistctapp-1998.

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