HILTON WIENER, as Beneficiary of LAND TRUST 2928-55 v. GOLEX PROPERTIES, LLC and ADRIAN RODRIGUEZ ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HILTON WIENER, as beneficiary of LAND TRUST 2928-55,
Appellant,
v.
GOLEX PROPERTIES, LLC, and ADRIAN RODRIGUEZ,
Appellees.
No. 4D21-998
[December 1, 2021]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Marni A. Bryson, Judge; L.T. Case No. 502020CC-
010872XXXXSB.
Hilton Wiener, Boca Raton, pro se.
Kenyetta N. Alexander and Mark R. Osherow of Osherow, PLLC, Boca
Raton, for appellees.
KUNTZ, J.
Hilton Wiener, as beneficiary of a land trust, filed a complaint against
Golex Properties, LLC, and Adrian Rodriguez for breach of a purchase and
sale agreement. The county court dismissed Wiener’s complaint with
prejudice. The court also denied Wiener’s motion to disqualify counsel for
Golex and Rodriguez. Wiener appeals both orders.
We affirm the order denying the motion to disqualify counsel without
discussion. Our affirmance on that issue is without prejudice to the
county court’s right to reconsider the order if it becomes apparent that
counsel is a necessary witness.
But we reverse the court’s order dismissing the complaint with
prejudice. The county court dismissed Rodriguez as a party after
concluding that he executed the purchase and sale agreement as Golex’s
agent and was therefore not a party to the agreement. The court dismissed
Golex based on its conclusion that it could not “ignore a previously agreed
upon liquidated damages provision because it is later not advantageous.”
Wiener argues that the court erred when it denied his request to amend
the complaint. Generally, he states that he could amend the complaint
and seek to nullify the liquidated damages provision and pierce the
corporate veil.
We agree. Leave of court to amend a pleading “shall be given freely
when justice so requires.” Fla. R. Civ. P. 1.190(a); see also Ins. Concepts
and Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232, 1236 (Fla. 4th
DCA 2001) (citation omitted) (“While the granting of motions to dismiss
with prejudice is generally not favored, it is proper if the pleading cannot
be amended to state a cause of action.”).
We reverse the order dismissing the complaint with prejudice. On
remand, the court must dismiss the complaint without prejudice and allow
Wiener the opportunity to file an amended complaint.
Affirmed in part, reversed in part, and remanded.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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