Grosso v. American Telephone & Telegraph Co.

District Court of Appeal of Florida

Grosso v. American Telephone & Telegraph Co.

691 So. 2d 604, 1997 Fla. App. LEXIS 3965, 1997 WL 181232

CourtDistrict Court of Appeal of Florida

DecidedApril 16, 1997

DocketNo. 96-0054

StatusPublished

Cited by1 cases

This text of 691 So. 2d 604 (Grosso v. American Telephone & Telegraph Co.) 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.

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Grosso v. American Telephone & Telegraph Co., 691 So. 2d 604, 1997 Fla. App. LEXIS 3965, 1997 WL 181232 (Fla. Ct. App. 1997).

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Opinion

MAY, MELANIE G., Associate Judge.

Amidst allegations of third-party beneficiary contractual obligations, respondeat superi- or, and negligence, this appeal raises the basic issue of pleading and proving a viable cause of action in the face of a motion for summary judgment. The trial court granted the defendant’s motion for summary judg[605]*605ment, but denied the plaintiffs motion for leave to amend. From this judgment, the plaintiffs appeal.

We agree that the trial court appropriately granted summary judgment based on the pleadings before it. However, the deposition of Mr. Grosso and the plaintiffs’ response to the motion for summary judgment raised facts that indicate that the plaintiffs should be given an opportunity to amend. “[Wjhere a summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pleaded, or a better one than that pleaded, the proper procedure is to enter the summary judgment with leave to the party to amend.” Hart Properties, Inc. v. Slack, 159 So.2d 286, 240 (Fla.1963); and Allen v. Port Everglades Auth., 553 So.2d 1341 (Fla. 4th DCA 1989).

We therefore affirm the summary judgment without prejudice to the plaintiffs to amend their complaint.

DELL and PARIENTE, JJ., concur.

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MAY, MELANIE G., Associate Judge.

Amidst allegations of third-party beneficiary contractual obligations, respondeat superi- or, and negligence, this appeal raises the basic issue of pleading and proving a viable cause of action in the face of a motion for summary judgment. The trial court granted the defendant’s motion for summary judg[605]*605ment, but denied the plaintiffs motion for leave to amend. From this judgment, the plaintiffs appeal.

We agree that the trial court appropriately granted summary judgment based on the pleadings before it. However, the deposition of Mr. Grosso and the plaintiffs’ response to the motion for summary judgment raised facts that indicate that the plaintiffs should be given an opportunity to amend. “[Wjhere a summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pleaded, or a better one than that pleaded, the proper procedure is to enter the summary judgment with leave to the party to amend.” Hart Properties, Inc. v. Slack, 159 So.2d 286, 240 (Fla.1963); and Allen v. Port Everglades Auth., 553 So.2d 1341 (Fla. 4th DCA 1989).

We therefore affirm the summary judgment without prejudice to the plaintiffs to amend their complaint.

DELL and PARIENTE, JJ., concur.

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691 So. 2d 604, 1997 Fla. App. LEXIS 3965, 1997 WL 181232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grosso-v-american-telephone-telegraph-co-fladistctapp-1997.

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