Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

December 31, 2016 by admin

Civil procedure — Amendment of complaint — Trial court abused discretion in denying plaintiff’s motion for leave to file amended complaint before entering summary judgment where allowing amendment would not prejudice defendant, there had been no prior requests to amend, and amendment would not be futile

42 Fla. L. Weekly D86c

Civil procedure — Amendment of complaint — Trial court abused discretion in denying plaintiff’s motion for leave to file amended complaint before entering summary judgment where allowing amendment would not prejudice defendant, there had been no prior requests to amend, and amendment would not be futile

AHMAD Y. SAIDI, Appellant, v. HATEM SAQR, Appellee. 5th District. Case No. 5D16-1537. Opinion filed December 30, 2016. Appeal from the Circuit Court for Orange County, John E. Jordan, Judge. Counsel: Ahmad Y. Saidi, Orlando, pro se. David S. Cohen and Lee Bernbaum, of Law Offices of David S. Cohen, LC, Orlando, for Appellee.  (PER CURIAM.) Ahmad Saidi (“Appellant”) appeals the final summary judgment entered against him and in favor of Hatem Saqr (“Appellee”), the defendant below. Concluding that the trial court abused its discretion in denying Appellant’s motion for leave to file an amended complaint, we reverse.  In his initial complaint, Appellant alleged that Appellee had loaned him money, which was memorialized by two promissory notes executed by him in favor of Appellee. Appellant further alleged that, not only had he paid these loans in full, but he had overpaid Appellee. Accordingly, he sought a refund or return of this alleged overpayment. Appellee answered the complaint, denying the material allegations. He also raised several affirmative defenses, including that Appellant’s cause of action was barred by the applicable statute of limitations. Appellee then filed a motion for summary judgment together with a supporting affidavit asserting that Appellant’s claim was time-barred, and he set his motion for hearing.  Approximately two weeks after Appellee filed his motion and more than one month before the summary judgment hearing, Appellant filed a motion for leave to amend his complaint, attaching a proposed first amended complaint to his motion. Following the hearing on both motions, the trial court entered an unelaborated order denying Appellant leave to amend and granting Appellee’s motion for summary judgment. The court thereafter entered the final summary judgment now on appeal.  We review the denial of a motion to amend a pleading under the abuse of discretion standard. Crown v. Chase Home Fin., 41 So. 3d 978, 979 (Fla 5th DCA 2010) (citations omitted). “Leave of court [to amend a pleading] shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). Public policy “favors the liberal granting of leave to amend” so that cases may be resolved on their merits. Crown, 41 So. 3d at 980 (citing Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132, 1135 (Fla. 5th DCA 1998)). “Courts should be especially liberal when leave to amend ‘is sought at or before a hearing on a motion for summary judgment.’ ” Gate Lands Co., 715 So. 2d at 1135 (quoting Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991)). “[A]ll doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that [1] allowing the amendment would prejudice the opposing party, [2] the privilege to amend has been abused, or [3] amendment would be futile.” Crown, 41 So. 3d at 979-80 (citing Yun Enters., Ltd. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003)).  Applying the foregoing standards, it is clear that allowing the amendment would not prejudice Appellee and that Appellant has not abused the privilege to amend, as the case was in its very early stages and there had been no prior requests to amend. As to the third prong, while the proposed pro se amended complaint is somewhat difficult to decipher, we cannot clearly conclude that any amendment to the complaint would be futile. Thus, applying the liberal standard favoring leave to amend when sought before a hearing on a motion for summary judgment, we find that the trial court abused its discretion in not providing Appellant with the opportunity to do so. Accordingly, we reverse the final summary judgment and remand with directions that the court grant Appellant leave to amend his complaint.  While we have reversed the final summary judgment to permit Appellant the opportunity to amend his complaint, we direct Appellant to Florida Rule of Civil Procedure 1.110(b), which requires that a pleading setting forth a claim for relief must state a cause of action and contain, among other things, “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” We caution Appellant that the failure to do so may lead the trial court, upon motion, to dismiss future amended complaints that do not comply with this requirement.  REVERSED and REMANDED with directions. (PALMER, LAMBERT and EDWARDS, JJ., concur.)
* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Commercial property — Coverage — Business losses — Business interruption — All-risk commercial policy providing coverage for “direct physical loss of or damage to” property or “direct physical loss or damage to” property does not insure against losses and expenses incurred by business as result of COVID-19 — Under Florida law there is no coverage because COVID-19 did not cause tangible alteration of the insured properties
  • Insurance — Commercial property — Coverage — Business income losses — Trial court’s finding that policy covering loss of business income due to the suspension of operations caused by “direct physical loss or damage to property” required some tangible alteration to insured property comported with common meaning of its terms and context of policy as a whole — Policy did not cover economic losses insured suffered when it suspended its operations due to COVID-19 pandemic — No error in dismissing with prejudice insured’s petition for declaratory relief and damages
  • Torts — Negligent security — Sovereign immunity — Agency — Limited immunity — Punitive damages — Amendment of complaint — Action brought against company which contracted with county to provide security services and its employee — Defendant company was entitled to limited sovereign immunity under 768.28(5) where county asserted a degree of control over defendant’s employees — Fact that defendant’s employee was working alone rather than side-by-side with county employees did not change level of control county had over defendant employee as evidenced by contract between county and defendant — Absolute immunity under section 768.28(9) applied to defendant employee, but did not apply to defendant company because it is a corporation — No abuse of discretion in denying plaintiff’s motion for leave to amend complaint to add count for punitive damages where record is devoid of evidence that defendant employee engaged in intentional misconduct or gross negligence
  • Insurance — Attorney’s fees — Assignee’s action against insurer to recover payment for construction work performed on insured property following hurricane damage — Court adopts magistrate’s report and recommendation concluding that Section 627.7152(10), Florida Statutes, which repeals assignee’s standing to recover attorney’s fees under section 627.428, does not apply in instant case where both issuance of policy and assignment agreement predated effective date of statute — Whether relevant date for purposes of applying statute is date policy was issued or date assignment agreement was entered into need not be resolved under circumstances — Motion to strike plaintiff’s claims for attorney’s fees is denied
  • Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982