Opinion
Case No. 96-0054
Opinion filed April 16, 1997
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Walter N. Colbath, Jr., Judge; L.T. Case No. CL 95-7214 (AE).
Jonathan I. Rotstein of Rotstein Kerce, P.A., Daytona Beach, and Bill McCabe of Sheperd, McCabe Cooley, Longwood, for appellants.
Pamela Beckham of Beckham Beckham, P.A., North Miami Beach, for appellee.
Amidst allegations of third-party beneficiary contractual obligations, respondeat superior, 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 judgment, but denied the plaintiff's 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. "[W]here 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 236, 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.