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
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

January 18, 2019 by Jennifer Kennedy

Torts — Civil procedure — Pleadings — Amendments — Trial court did not abuse its discretion in denying plaintiff’s motion to amend complaint because amendments would have been futile where new negligence claims suffer same notice defects as prior claims, and plaintiff has no viable First Amendment claim because she was speaking as a government employee

44 Fla. L. Weekly D237a

Torts — Civil procedure — Pleadings — Amendments — Trial court did not abuse its discretion in denying plaintiff’s motion to amend complaint because amendments would have been futile where new negligence claims suffer same notice defects as prior claims, and plaintiff has no viable First Amendment claim because she was speaking as a government employee 

JOHANNA BEANBLOSSOM, Appellant, v. BAY DISTRICT SCHOOLS, BAY COUNTY, FLORIDA, Appellee. 1st District. Case No. 1D17-0980. January 14, 2019. On appeal from the Circuit Court for Bay County. James B. Fensom, Judge. Counsel: Cecile M. Scoon of Peters & Scoon, Panama City, for Appellant. Heather K. Hudson and Dixon Ross McCloy, Jr., of Harrison, Sale, and McCloy, Panama City, for Appellee.

(PER CURIAM.) Johanna Beanblossom appeals the denial of her motion for leave to amend her complaint. Beanblossom argues that the trial court abused its discretion because she had never previously sought to amend her complaint, the case was still in the summary judgment stage, and the amendments were based upon similar facts. We find no abuse of discretion and affirm.

I.
Beanblossom filed a two-count complaint against Bay District Schools in December 2013, alleging in Count I a whistle-blower claim under section 112.3187, Florida Statutes, and in Count II a negligent retention claim. The complaint alleged that Bay District Schools did not properly investigate her complaints, fired her for making these complaints, and failed to fire the employee she complained about.

Over a year later, Bay District Schools filed a motion for summary judgment on Count I and, despite the response Beanblossom filed on the morning of the hearing almost a year later, the trial court granted the motion. Beanblossom does not assert any error as to Count I in this appeal.

Bay District Schools’ answer to Beanblossom’s complaint alleged as to Count II that Beanblossom failed to comply with section 768.28(6)(a), Florida Statutes, which requires notice to be provided to the State prior to bringing an action. Over two years later, Bay District Schools filed a motion for summary judgment on Count II on this basis. Beanblossom responded with plainly meritless arguments as the November 8, 2016, hearing date drew closer until November 7, at 11:34 p.m., when she filed a motion for leave to amend her complaint. This proposed amended complaint would add an additional defendant and assert four counts, including another negligence claim based on a different factual theory and a claim asserting a First Amendment violation. Bay District Schools objected.

After the November 8 hearing, the trial court entered an order granting Bay District Schools’ motion for summary judgment as to Count II. The order also denied Beanblossom’s motion for leave to amend the complaint, finding the following:

Plaintiff’s motion to amend comes three years into this litigation, after extensive discovery, and on the eve of a hearing for final summary judgment. This last minute request appears to be an attempt to circumvent summary judgment and escape the effects of failing to comply with section 768.28 despite being aware of the statute and having time to cure well within the statutory period. Moreover, the addition of a new defendant and the [Federal section] 1983 claim introduces new issues into the litigation. . . . Under these circumstances, the Court finds it appropriate to deny Plaintiff’s motion to amend.

After the trial court denied Beanblossom’s motion for rehearing, she filed this appeal.1

II.
“The Florida Rules of Civil Procedure encourage a policy of liberality in allowing litigants to amend their pleadings, especially prior to trial; this policy exists so that cases will be tried on their merits.” Morgan v. Bank of New York Mellon, 200 So. 3d 792, 795 (Fla. 1st DCA 2016). Although permitting pleading amendments is encouraged, when making this determination, trial courts should consider prejudice to the opposing party, abuse by the moving party, and whether the proposed amendments would be futile. Id. (quoting Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So. 3d 15, 16 (Fla. 5th DCA 2009)). We review this ruling for abuse of discretion. Id.

Taking the last of these considerations first, we note that Beanblossom asserts that the additional claims she raised in the proposed amended complaint are not futile. We disagree. She asserted a new theory of negligence against Bay District Schools, but it suffers the same notice defect as her prior claim. And her First Amendment claim — that she was retaliated against for speaking as a citizen when making complaints to various school district personnel — is futile because she did not speak as a citizen. See Slay v. Hess, 621 Fed. Appx. 573, 576 (11th Cir. 2015) (quoting Boyce v. Andrew, 510 F. 3d 1333, 1343 (11th Cir. 2007)) (“In complaining to her superiors at work about how time was allotted, she was speaking as an employee, and when a government employee speaks as an employee ‘there can be no First Amendment issue, and the constitutional inquiry ends.’ ”). Because the proposed amendments would have been futile, the trial court did not abuse its discretion in disallowing the amendments.2

III.
Trial courts are encouraged to allow amendments to pleadings, but the right to amend is not unlimited. Because we find no abuse of discretion in the trial court’s determination that the amendments were unwarranted, we AFFIRM. (MAKAR, WINOKUR, and WINSOR, JJ., concur.)

__________________

1Beanblossom also appeals the order granting summary judgment in favor of Bay District Schools on Count II. We find no error in this order.

2Because we find that the proposed amendments would have been futile, we need not address whether they would have caused prejudice to the opposing party or whether they constituted abuse.

* * *

Filed Under: Uncategorized

Primary Sidebar

Blog Archives

  • February 2021
  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

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 © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982