OCEANSIDE PLAZA CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
FOAM KING INDUSTRIES, INC., ET AL., APPELLEES

Fla. 3d DCA | 2016-11-09
No. 3D15-2449
Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.
206 So. 3d 785 Florida District Court of Appeal, Third District (2016) Positive Treatment
Cited by 6 cases

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Synopsis

Oceanside Plaza Condominium Association appealed the dismissal of its Second Amended Complaint against Foam King Industries for breach of contract related to faulty roofing. The Third District Court of Appeal reversed, holding that the trial court improperly considered the superseded First Amended Complaint when evaluating the motion to dismiss and that successor liability claims may be pleaded in the first instance.


Holding

The trial court erred in dismissing the Second Amended Complaint. An amended complaint supersedes and abandons the original pleading, and the court must limit its review to the four corners of the operative complaint. The Second Amended Complaint's allegations of discovery within the statute of limitations preclude dismissal on that basis. Additionally, successor liability and alter ego claims may be pleaded in the first instance and need not await judgment.


Headnotes

[1] An amended complaint supersedes and abandons the original complaint, rendering the original complaint no longer part of the record.

[2] A trial court ruling on a motion to dismiss must limit its review to the four corners of the operative complaint.

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Key Quotes

“the filing of an amended complaint constitutes 'an abandonment of the original complaint which was superseded, [and it] ceased to be part of the record and could no longer be viewed as a pleading.'”

Establishes the foundational principle that amended pleadings supersede and abandon prior versions, which the trial court violated by considering the First Amended Complaint.

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Facts & Procedural History

On February 28, 2008, Oceanside entered into a contract with Foam King Defendants for roof installation with warranties. Oceanside filed suit in July …

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Opinion of the Court
SUAREZ, C.J.

SUAREZ, C.J.

Oceanside Plaza Condominium Association, Inc. (“Oceanside”) appeals a final order dismissing with prejudice its Second Amended Complaint against Foam King Industries, Inc., Greg Howard, Foam King Roofing and Insulation, Inc. and Roof King, Inc. (collectively the “Foam King Defendants”) for breach of contract and damages allegedly resulting from faulty roofing materials and installation performed by Foam King Industries, Inc. We reverse.

On February 28, 2008, Oceanside entered into a contract with the Foam King Defendants for installation of a new roof. Upon completion, the Foam King Defendants issued warranties. Oceanside claimed the roof leaked and brought the instant action. Oceanside initially filed its Complaint against the Foam King Defendants and others in July 2013. In September 2013 Oceanside filed a First Amended Complaint. Both the initial Complaint and First Amended Complaint alleged that in December 2008 Oceanside received a “five year guarantee on all re-roofing and a fifteen year manufacturer’s warranty” for the roofing materials (provided by another defendant who is not a party to this appeal). Oceanside also alleged that “shortly thereafter” Oceanside noticed damage to the roof. The Foam King Defendants moved to dismiss the First Amended Complaint arguing that the claim was barred by the four-year statute of limitations because the term “shortly thereafter” used in Oceanside’s Complaint and First Amended Complaint showed that Oceanside was aware of the leaks in December 2008 and, therefore, the statute of limitations had run by the time Oceanside filed its Complaint. Without any ruling on that motion, the parties agreed to dismiss the First Amended Complaint and to an agreed order allowing a Second Amended Complaint. The Trial Court entered the Agreed Order in September 2014. In November 2014 Oceanside filed a Second Amended Complaint in which it clarified that it had first discovered problems with the roof and a water leak on July 24, 2009. July 24, 2009 is the last day before the statute of limitations would have expired for the initial Complaint. The Foam King Defendants again moved to dismiss by incorporating their original motion and arguing that the allegations of the First Amended Complaint and the Second Amended Complaint were identical. After hearing, the trial court granted the Motion to Dismiss with prejudice. The trial court’s order from which this appeal is taken states that in dismissing the Second Amended Complaint the trial court did not limit itself to the four corners of the Second Amended Complaint, but instead dismissed the Second Amended Complaint because the trial court reviewed the previously-dismissed First Amended Complaint and determined that the Second Amended Complaint presented new facts that contradicted the facts of the First Amended Complaint.1

*787We find that the trial court erred in dismissing the . Second Amended Complaint, which was timely and properly filed, because the trial court improperly considered the dismissed First Amended Complaint as grounds to dismiss the Second Amended Complaint. Long-standing Florida case law makes clear that the filing of an amended complaint constitutes “an abandonment of the original complaint which was superseded, [and it] ceased to be part of the record and could no longer be viewed as a pleading.” Babb v. Lincoln Auto Finance Co., 133 So.2d 566, 568 (Fla. 3d DCA 1961); See also, Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562, 562-63 (1941) (“By the filing of this [amended] declaration the plaintiff abandoned the original declaration and it no longer served any purpose in the record.”); Commercial Garden Mall v. The Success Academy, Inc., 453 So.2d 934, 936 (Fla. 4th DCA 1984) (“An original pleading is usually superseded by an amendment to it.”); Metropolitan Bank & Trust Co. v. Vanguard Ins. Co., 400 So.2d 184 (Fla. 2d DCA 1981).

Based on the foregoing cases, when ruling on the Foam Kings Defendants’ Motion to Dismiss, the trial court should have reviewed only the allegations of the Second Amended Complaint. Moreover, “[i]n determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party,” Grove Isle Ass’n v. Grove Isle, Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014) (citations omitted). Thus, it was improper for the trial court to compare the allegations of the First and Second Amended Complaints and then conclude that the allegations had been changed solely to avoid dismissal based on the statute of limitations. The only pleading properly before the trial court was the Second Amended Complaint and that pleading contains allegations which preclude a dismissal based on the statute of limitations because it alleges discovery of the roof damage within the statute of limitations for commencement of the action.2

In its dismissal Order, the trial court also concluded that Oceanside had failed to state a cause of action against certain of the Foam King Defendants. Oceanside alleged that Greg Howard was a shareholder of Foam King Industries, Inc. and that when Foam King Industries, Inc. closed its doors, it began operating as Foam King Roofing and Insulation, Inc. (“Foam King Roofing”) and Roof King, Inc. (“Roof Bang”). Oceanside alleged that *788Foam King Roofing and Roof King are successor entities to Foam King Industries, Inc. and made claims against them in that capacity.

In its ruling, the trial court concluded that “successor liability and continuation of business are post judgment theories appropriate only if the Plaintiff is first able to obtain a judgment.” That conclusion is also contrary to long-standing case law permitting claims to be made against successor corporations and alter egos in the first instance. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984); Gasparini v. Pordomingo, 972 So.2d 1053 (Fla. 3d DCA 2008); Lab. Corp. of Am. v. Prof'l Recovery Network, 813 So.2d 266 (Fla. 5th DCA 2002); Celotex Corp. v. Pickett, 490 So.2d 35, 37 (Fla.1986); Bernard v. Kee Mfg. Co. Inc., 409 So.2d 1047, 1048 (Fla.1982). Moreover, the trial court erred in concluding that Oceanside had failed to properly allege its claims against Foam King Roofing and Roof King. The Second Amended Complaint contains sufficient allegations to satisfy the pleading requirements for all such claims. Dania Jai-Alai, 450 So.2d at 1117.

Reversed and remanded.


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Citator

Cited By

  • Cousins v. Post-Newsweek Stations Florida, 275 So. 3d 674 (Fla. 3d DCA 2019)
    …s contained in earlier, superseded complaints to emphasize he has “repeatedly complied with [r]ule 1.120”; and does not refer to allegations contained in subsequent operative complaints. See Oceanside Plaza Condo. Ass'n v. Foam King Indus., Inc., 206 So. 3d 785, 787 (Fla. 3d DCA 2016) (“Long-standing Florida case law makes clear that the filing of an amended complaint constitutes an abandonment of the original complaint which [is] superseded, and it cease[s] to be part of the record and [can] no longer…

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