JVN Holdings, Inc. v. American Construction & Repairs, LLC , 2016 Fla. App. LEXIS 1401 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed February 3, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2611
Lower Tribunal No. 13-35832
________________
JVN Holdings, Inc., etc., et al.,
Appellants,
vs.
American Construction and Repairs, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake,
Judge.
Michael A. Vandetty, for appellants.
Broad and Cassel, Gary E. Lehman and Beverly A. Pohl (Fort Lauderdale),
for appellee.
Before SHEPHERD, LAGOA and EMAS, JJ.
EMAS, J.
JVN Holdings, Inc., and Mark and Natalie Weider appeal a final summary
judgment entered in favor of American Construction and Repairs, LLC
(“American”). Because genuine issues of material fact remain in dispute, we
vacate the final summary judgment, as well as the order denying JVN/Weiders’
motion for leave to file amended answer and counterclaim, and the order awarding
attorney’s fees to American.
American, a licensed general contractor, filed suit against JVN and the
Weiders, seeking to foreclose on a construction lien and to recover damages
arising out of, inter alia, the alleged breach of an oral contract for construction
services on two residential properties. Under the terms of the oral contract, JVN
and the Weiders agreed to pay American an hourly rate for labor and to reimburse
American at cost for all materials and third party labor. When the Weiders
allegedly failed to pay the final construction bill, American filed suit.
Following discovery, American moved for summary judgment, asserting it
was entitled to judgment as a matter of law because JVN and the Weiders had
failed to challenge the amount American alleged was due and owing under the oral
contract. In support of this assertion, American attached the depositions of Mr.
and Mrs. Weider.
In response to American’s motion for summary judgment, JVN and the
Weiders asserted there remained genuine issues of disputed fact with regard to the
2
amounts billed by American, and in support, submitted several invoices as well as
affidavits from Mr. Weider and Jeri Goodkin Dausey, a licensed general
contractor, retained as an expert in this matter.
JVN and the Weiders also sought leave to file an amended answer and a
counterclaim. Following a hearing, the trial court determined there were no
genuine issues of material fact, and entered final summary judgment for American.
The court also denied JVN/Weiders’ motion for leave to file an amended answer
and counterclaim, and granted American’s motion for attorney’s fees.
In ruling on a motion for summary judgment, the trial court (and this Court
in its de novo review) must construe all the evidence, and draw every possible
inference therefrom, in a light most favorable to the non-moving party. Moore v.
Morris, 475 So. 2d 666 (Fla. 1985); Suarez v. City of Hialeah, 971 So. 2d 948 (Fla.
3d DCA 2007); McQueen v. Roye, 785 So. 2d 512 (Fla. 3d DCA 2000).
The trial court erred in determining there were no genuine issues of material
fact in dispute. Though not a model of clarity, the deposition testimony of Mr.
Weider contains multiple instances in which he disputed the amounts (and the
reasonableness of the amounts) billed by American. The existence of a genuine
dispute as to these amounts was corroborated by Mr. Weider’s affidavit1 as well as
1 We reject American’s contention that affirmance is warranted under Ellison v.
Anderson, 74 So. 2d 680 (Fla. 1954) and Baker v. Airguide Mfg., LLC, 151 So. 3d
38 (Fla. 3d DCA 2014). Those cases involve a party attempting to create a genuine
issue of material fact (and thereby avoid summary judgment) by submitting a
3
the affidavit of the Weiders’ expert, Ms. Dausey. Accordingly, it was error for the
trial court to grant summary judgment, and we reverse and remand for further
proceedings.
Because we are reversing and remanding, we address the remaining orders
under review. The trial court denied JVN and the Weiders’ motion to amend their
answer and affirmative defenses and to assert a counterclaim, determining that the
motion was untimely because it was filed on the eve of the summary judgment
hearing. This determination was erroneous. As this court has previously held:
[R]efusal to allow an amendment is an abuse of the trial court’s
discretion “unless it clearly appears that allowing the amendment
would prejudice the opposing party, the privilege to amend has been
abused, or amendment would be futile.”
Kay’s Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006)
(quoting Kimball v. Publix Super Markets, Inc., 901 So. 2d 293, 296 (Fla. 2d DCA
2005)). None of these circumstances is present in the record before us. Such a
policy is also reflected in Florida’s rules of civil procedure. See Fla. R. Civ. P.
1.190(a) (providing that leave of court to amend pleadings “shall be given freely
when justice so requires.”)
witness affidavit which, without proper explanation, materially contradicted or
repudiated that same witness’ prior testimony. By contrast, in the instant case Mr.
Weider’s deposition testimony alone created a disputed issue of material fact; it
was crystallized in his subsequent affidavit, and was further corroborated by his
expert’s affidavit.
4
Further, “[c]ourts should be especially liberal when leave to amend is sought
at or before a hearing on a motion for summary judgment.” Laurencio v. Deutsche
Bank Nat. Trust Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) (internal
quotations omitted). See also Firestone Tire & Rubber Co. v. Thompson Aircraft
Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977) (reversing trial court’s denial of
plaintiff’s oral motion to amend complaint, made at the hearing on defendant’s
motion for summary judgment); Haag v. Phillips, 333 So. 2d 507 (Fla. 2d DCA
1976) (same). See also Dausman v. Hillsborough Area Reg. Transit, 898 So. 2d
213 (Fla. 2d DCA 2005) (holding trial court abused its discretion in denying
plaintiff’s motion to amend complaint where motion was made after trial court
orally granted summary judgment but before rendition of the final summary
judgment).
We vacate the order denying the motion to amend and remand for further
consideration in light of Florida’s public policy which favors allowing parties to
amend pleadings, and all doubts should generally be resolved in favor of
permitting such amendments. Caduceus Properties, LLC v. Graney, 137 So. 3d
987 (Fla. 2014). On remand, and in the absence of prejudice, abuse of the privilege
to amend, or futility, leave should freely be given to amend the answer and
affirmative defenses and to add a counterclaim.
5
Finally, and because we are reversing the final summary judgment, we must
also vacate the order awarding attorney’s fees to American.
Reversed and remanded for further proceedings consistent with this opinion.
6