ANTHONY LATERZA
v.
HARRY WINDERMAN, ESQ. AND WEISS, HANDLER & CORNWELL, P.A.
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A party denied summary judgment should be granted leave to amend and plead an alternative cause of action not previously pleaded when circumstances indicate the party may have a viable claim.
[1] When a trial court grants summary judgment on a plaintiff's claims but the record indicates the plaintiff may have an alternative cause of action not previously pleaded,…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In circumstances such as this where 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.”
Court citing Hart Props., Inc. v. Slack, 159 So. 2d 236, 240 (Fla. 1963) to support the principle that leave to amend should be granted in appropriate circumstances.
Plaintiff Anthony Laterza appealed from a final judgment in favor of defendant Harry Winderman following summary judgment on plaintiff's pending cause…
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY LATERZA, Appellant,
v.
HARRY WINDERMAN, Appellee.
No. 4D20-783
[December 16, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn
D.
Kelley, Judge;
L.T.
Case No. 502018CA011917XXXMB.
Anthony Laterza, North Palm Beach, pro se.
Harry Winderman, Boca Raton, pro se.
GERBER, J.
The plaintiff appeals from the circuit court’s final judgment in the defendant’s favor, but more specifically from two orders leading to the final judgment.
We affirm without further discussion the circuit court’s order granting the defendant’s motion for summary judgment on the plaintiff’s thenpending causes of action against the defendant, which causes of actions we deem as having been disposed with prejudice.
However, we reverse in part the circuit court’s order summarily denying the plaintiff’s motion for rehearing, to the extent the plaintiff requested leave to amend his complaint to plead an alternative cause of action against the defendant for unjust enrichment. See, e.g., Hart Props., Inc. v. Slack, 159 So. 2d 236, 240 (Fla. 1963) (“In circumstances such as this where 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 ....”).
2
Based on the foregoing, we remand for the circuit court to vacate its final judgment and enter an order granting the plaintiff leave to file a fourth amended complaint which shall be limited to pleading a cause of action against the defendant for unjust enrichment. In so holding, we do not suggest that the plaintiff has a viable cause of action for unjust enrichment, only that he be given the opportunity to plead such a claim.
Affirmed in part, reversed in part, and remanded with instructions.
DAMOORGIAN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.