Toscano Condo Assoc. v. Dda Engineers

Third District Court of Appeal
State of Florida

Opinion filed May 29, 2019.
Not final until disposition of timely filed motion for rehearing.

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No. 3D18-1762
Lower Tribunal No. 15-21747
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Toscano Condominium Association, Inc.,
Appellant,

vs.

DDA Engineers, P.A.,
f/k/a Donnell, Duquesne, & Albaisa, P.A.,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.

Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., and
Jason B. Trauth, and James S. Czodli, for appellant.

Oramas & Associates, P.A., and John E. Oramas, and Miles A. Archabal, for
appellee.

Before EMAS, C.J., and SCALES, and LINDSEY, JJ.

LINDSEY, J.
 Toscano Condominium Association, Inc. (the “Association”) appeals the

denial of its motion to file a fourth amended complaint to include Appellee DDA

Engineers as a direct defendant in a multi-defendant action for construction and

design defects in a condominium building. Because the Association was, at a

minimum, on notice of the potential claims against DDA Engineers yet waited

until after it had already been granted leave to amend on three prior occasions, and

because the Association did not seek to assert those claims until more than two

years after the filing of the complaint and more than six months after the trial court

conducted its case management conference, we affirm, finding that the trial court

did not abuse its discretion in denying the Association’s motion for leave to

amend.

I. BACKGROUND

The Association assumed control of the condominium at issue in June 2012.

In September 2015, the Association filed this action against various defendants for

damages allegedly arising from construction and design defects in the

condominium. In May 2016, the Association amended its complaint to add more

defendants. The Association further amended its complaint to add additional

defendants in January and June of 2017. Thereafter, in June 2017, the trial court

entered its Case Management Order setting various deadlines for pretrial events

and scheduling the case for trial beginning July 16, 2018.1 The order imposed an

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August 1, 2017 deadline for adding parties. Despite this deadline, the Association

moved for leave to file a fourth amended complaint to add claims against DDA

Engineers on November 30, 2017. The trial court denied the Association’s motion

to amend on January 22, 2018.2 The Association now seeks review of the denial of

its motion to file the fourth amended complaint.3

II. JURISDICTION

As an initial matter, DDA Engineers contends that this appeal is untimely

because the Association relied on the trial court’s dismissal order as a final

judgment, which was entered about six months after the order denying leave to

amend. According to DDA Engineers, the order denying the motion for leave to

amend was a final and appealable order; therefore, the Association’s appeal is

untimely.

We disagree. “[A]n order denying leave to amend is a non-final and non-

appealable order.” Traveler v. Steiner Transocean Ltd., 895 So. 2d 1191, 1192

(Fla. 3d DCA 2005) (citing Palomares v. Ocean Bank of Miami, 574 So. 2d 1159,

1161 (Fla. 3d DCA), review denied, 587 So. 2d 1328 (Fla. 1991)). DDA

1 The trial court conducted a case management conference in April 2017, which
resulted in the Case Management Order, entered in June 2017.
2 Throughout the case, the Association stipulated to dismissal of various

defendants. Ultimately, the Association dismissed its claims against all other
defendants.
3 In its brief, the Association asserts it has filed, separate and apart from this

appeal, an independent action against DDA Engineers.

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Engineers mistakenly relies on Valcarcel v. Chase Bank USA NA, 54 So. 3d 989,

990 (Fla. 4th DCA 2010), which held that “[a]n order dismissing an action without

prejudice and without granting leave to amend is a final appealable order.” But

here, unlike in Valcarcel, the order denying the Association’s motion for leave to

amend did not dismiss the action. “For an order to be final, it must constitute an

entry of a dismissal of the case. It is the dismissal of the case that is final and

appealable . . . .” GMI, LLC v. Asociacion del Futbol Argentino, 174 So. 3d 500,

501 (Fla. 3d DCA 2015).

Thus, the order denying the Association’s motion for leave to amend was an

interlocutory order that could not be appealed until the case was completed. This

occurred upon the dismissal of the case. Accordingly, we have jurisdiction. See

Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 23:3 (2018 ed.) (“When the

jurisdiction of an appellate court has been invoked to review a final order or

judgment, the court may review the entire case in the lower court, including all

issues preserved for review during the trial and pretrial proceedings.” (citing Fla.

R. App. P. 9.110(h))).

III. STANDARD OF REVIEW

This Court reviews the denial of a motion for leave to amend a pleading for

abuse of discretion. RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 916

(Fla. 3d DCA 2016) (citing Cobbum v. Citimortgage, Inc., 158 So. 3d 755 (Fla. 2d

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DCA 2015)); Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA

1992) (“It is settled that as an action progresses, the privilege of amendment

progressively decreases to the point that the trial judge does not abuse his

discretion in dismissing with prejudice.”); Alvarez v. DeAguirre, 395 So. 2d 213,

216 (Fla. 3d DCA 1981) (“While the policy in Florida is to liberally allow

amendments to pleadings where justice so requires, Romish v. Albo, 291 So.2d 24

(Fla.3d DCA 1974), Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA

1971), a trial judge in the exercise of sound discretion may deny further

amendments where a case has progressed to a point that liberality ordinarily to be

indulged has diminished.” (citing Ruden v. Medalie, 294 So. 2d 403 (Fla. 3d DCA

1974)).

IV. ANALYSIS

The issue before us is whether the trial court abused its discretion in denying

the Association’s fourth motion to amend. We find it did not. We recognize the

general rule governing motions to amend a complaint that “leave to amend a

Complaint should not be denied unless the privilege is abused, the opposing party

will be prejudiced, or amendment would be futile.” Gerber Trade Fin., Inc. v.

Bayou Dock Seafood Co., 917 So. 2d 964, 978 (Fla. 3d DCA 2005) (citing World

Class Yachts, Inc. v. Murphy, 731 So. 2d 798, 800 (Fla. 4th DCA 1999)); see also

Fla. R. Civ. P. 1.190(a) (“Leave of court shall be given freely when justice so

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requires.”). “However, in addition to the desirability of allowing amendments to

pleadings so that cases may be concluded on their merits, there is an equally

compelling obligation on the court to see to it that the end of all litigation be finally

reached.” Price v. Morgan, 436 So. 2d 1116, 1122 (Fla. 5th DCA 1983) (citing

Alvarez, 395 So. 2d at 216).

The Association contends both that it did not abuse its amendment privilege

and that there was no prejudice to DDA Engineers. Here, the proposed amendment

would have been the fourth time the Association amended its complaint to bring in

new parties to the litigation. And significantly, the latest request to amend came

after the case was set for trial and the trial court had specifically set a deadline for

bringing in new parties.

With regard to prejudice, admittedly, DDA Engineers was involved in the

case relatively early on in the litigation. But, it faced only indemnity claims from

the architect of the condominium building. The Association is correct that these

are qualitatively different from the direct claims it sought to bring against DDA

Engineers in its role as structural engineers and threshold inspectors. However,

litigation must end at some point, and trial courts must be afforded the discretion to

manage their dockets. See SR Acquisitions-Florida City, LLC v. San Remo

Homes at Florida City, LLC, 78 So. 3d 636, 638 (Fla. 3d DCA 2011) (“A trial

court has broad discretion to manage its docket, but must do so within the confines

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of governing statutes and rules of procedure.”). Likewise, litigants must bear some

responsibility in diligently pursuing their cases to resolution in a timely manner.

See Freeman v. Mintz, 523 So. 2d 606, 610 (Fla. 3d DCA 1988) (recognizing

plaintiffs’ “obligations as litigants to diligently prosecute the claim”).

V. CONCLUSION

Accordingly, because the Association was at a minimum on notice of the

potential claims against DDA Engineers yet waited until after it had already been

granted leave to amend on three prior occasions, and because the Association did

not seek to assert those claims until more than two years after the filing of the

complaint and more than six months after the trial court conducted its case

management conference, we find that the trial court did not abuse its discretion in

denying leave to amend.

AFFIRMED.

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