## Facts

- B.P. Development and Management Corporation (BP) operated a shopping mall and contracted with P. Lafer Enterprises, Inc. (Lafer) to supply holiday-themed hangings to decorate the mall.
- The hangings arrived shortly before the holiday shopping season, leaving BP little time to obtain substitute decorations from another supplier.
- BP was dissatisfied with the hangings’ quality and believed they were not worth the contract price.
- Despite its complaints, BP used the hangings throughout the holiday season because replacement before the season was impracticable.
- BP asked Lafer to accept a reduction in the contract price; Lafer refused.
- About six months later, BP offered to rescind the contract; Lafer refused.
- Lafer sued BP asserting claims including breach of contract, quantum meruit, and civil theft.
- BP responded with defenses and a counterclaim (including rescission), and later sought leave to amend its counterclaim to add a claim for damages for nonconforming goods.
- The trial court granted Lafer summary judgment and denied BP’s motion to amend the counterclaim.

## Issues

1. Did the trial court abuse its discretion by denying BP leave to amend its counterclaim to assert a claim for damages for nonconforming goods after summary judgment was entered?
2. In the summary-judgment posture, where the buyer used the goods and did not reject them, should BP still have been permitted to pursue a damages theory based on alleged nonconformity?

## Decision

- The Fifth District Court of Appeal reversed the final summary judgment and remanded.
- The court held the trial court erred in denying BP’s motion to amend its counterclaim to assert damages for nonconforming goods.
- The case was returned to the trial court with directions to allow the amendment and proceed on the amended pleadings.

## Legal Principles

- Florida procedure applies a liberal standard to amendment of pleadings; leave to amend should be granted unless the amendment would cause undue prejudice, is futile, or is sought in bad faith.
- Even when summary judgment would otherwise be proper on the pleadings as framed, if the record indicates the losing party may have a viable unpleaded claim or defense, the trial court should permit amendment so the dispute is resolved on the merits.
- A buyer’s use of goods and failure to reject may affect remedies like rejection or rescission, but it does not necessarily eliminate a possible claim for monetary relief based on nonconformity; such a claim may be pursued if properly pleaded and supported by the record.

## Conclusion

The appellate court reversed because BP sought to assert, on essentially the same factual record, a potentially viable claim for damages based on alleged nonconforming holiday decorations, and Florida’s liberal amendment policy required permitting that amendment rather than ending the case on the pleadings as originally drafted.


B.P. Development and Management Corp. v. P. Lafer Enterprises, 538 So. 2d 1379 (1989)