MARTIN PLYSER AND GLORIA ANN PLYSER, APPELLANTS,
v.
DEMITRI HADOS, SYLVIA HADOS AND JOSEPH S. MEISTER, APPELLEES
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A licensed plumbing contractor was injured by an electrical shock while installing a dishwasher in the defendants' home. The trial court granted summary judgment against the plaintiff after denying his motion to amend the complaint, but the appellate court reversed, holding that the trial court erred in refusing the amendment and that disputed factual issues precluded summary judgment.
The trial court erred in denying the motion to amend because leave to amend should be freely given, particularly where the amendment is based on the same conduct and transaction as the original claim and sought before trial. Summary judgment was also improper because the extensive record reflected disputed issues of fact regarding whether the electrical defect was obvious or hidden and the homeowners' knowledge of it.
[1] Summary judgment is not the proper vehicle for disposition of faulty or inefficient pleadings.
[2] Doubt on issues of negligence should always be resolved in favor of a jury trial.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Whatever the shortcomings, if any, of appellants' original complaint, entry of summary judgment is not the proper vehicle for disposition of faulty or inefficient pleadings.”
Establishes that summary judgment cannot be used to dispose of pleading defects; the proper remedy is to allow amendment.
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Join FLexlaw to unlock all legal intelligenceMartin Plyser, a licensed plumbing contractor, was severely shocked while installing a water hookup for a new dishwasher in the home of Demitri and Sy…
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HENDRY, Judge.
We vacate summary final judgment rendered below adversely to plaintiffs (appellants).
That order issued after the trial court denied appellants’ motion for leave to amend their complaint.1 Since the court’s summary disposition pertained only to those issues raised in the original pleading, and since we find as a matter of law that the court should have allowed the proffered amendment, we remand for consideration of the issues raised therein. Appellant, a licensed plumbing contractor, was severely shocked while installing the water hookup of a new dishwasher in the home of appellees Hados. The faulty electrical connection was made by appellee Meister with a “pigtail” connector provided by the homeowner. Whatever the shortcomings, if any, of appellants’ original complaint, entry of summary judgment is not the proper vehicle for disposition of faulty or inefficient pleadings. DeCarlo v. Sammons, 375 So. 2d 351 (Fla.3d DCA 1979); Booth v. Mary Carter Paint Co., 182 So. 2d 292 (Fla.2d DCA 1966).
The extensive record below reflects disputed issues of fact precluding summary judgment; specifically, whether the faulty electrical connection was an obvious or hidden defect; and the existence of express or implied knowledge of the defect on the part of the homeowners. Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla.1965); Hall v. Holland, 47 So. 2d 889 (Fla.1950); Milby v. Pace Pontiac, Inc., 176 So. 2d 554 (Fla.2d DCA 1965).
Any doubt on issues of negligence should always be resolved in favor of a jury trial. Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla.3d DCA 1967); Musachia v. Rosman, 190 So. 2d 47 (Fla.3d DCA 1966); Grail v. Risden, 167 So. 2d 610 (Fla.2d DCA 1964).
Upon review of the pleadings, we have concluded that the trial court erred in its refusal to allow the requested amendment. Appellants’ complaint contained a number of allegations of negligence on the part of the co-appellees which were amplified by the attempted amendment. This reformulation of the issues reflected evidence elicited during the course of discovery and therefore could not have constituted surprise. Cf. United Telephone Co. v. Mayo, 345 So. 2d 648 (Fla.1977).
Moreover, appellants’ motion was made more than two months prior to the date of trial. It is well established that leave to amend should be freely given2, particularly where, as here, the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought, Knipp v. Weinbaum, 351 So. 2d 1081 (Fla.3d DCA 1977), and the party seeks amendment at or before a hearing on a motion for summary judgment. Sarasota Commercial Refrigeration v. Schooley, 381 So. 2d 1141 (Fla.2d DCA 1980); Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla.3d DCA 1977); Haag v. Phillips, 333 So. 2d 507 (Fla.2d DCA 1976).
Where the record indicates that a plaintiff may have a viable claim if properly pleaded, the plaintiff is to be afforded an opportunity to amend the complaint. Gold Coast Crane Service, Inc. v. Watier, 257 So. 2d 249 (Fla.1971); Greenburg v. Johnston, 367 So. 2d 229 (Fla.2d DCA 1979); Forte v. Tripp & Skrip, 339 So. 2d 698 (Fla.3d DCA 1976).
Accordingly, the order of summary judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. Fla.R.Civ.P. 1.190.
. Fla.R.Civ.P. 1.190(a).
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Cited By (11 total)
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Mayme Bondu v. Ruben Gurvich, M.D., 473 So. 2d 1307 (Fla. 3d DCA 1978)…ough a party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment, Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1963); Roberts v. Braynon, 90 So. 2d 623 (Fla.1956); Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980), and a denial of leave to amend is an abuse of discretion where the proffered amendment indicates that the plaintiff can state a cause of' action, Greenburg v. Johnston, 367 So. 2d 229 (Fla. 2d DCA 1979); cf. Davis v. Sun First Na…
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Storr v. Proctor, 490 So. 2d 135 (Fla. 3d DCA 1986)…re mesh was superior to Storr’s knowledge. I would, therefore, reverse the summary final judgment entered in favor of Proctor, see Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Harvey Building, Inc. v. Haley, 175 So. 2d 780 (Fla.1965); Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980), and remand for trial.…
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Beuleah S. Pasekoff and Richard L. Grinberg v. Kaufman, 392 So. 2d 971 (Fla. 3d DCA 1981)…v. Cloverleaf, Inc., 136 Fla. 899, 187 So. 360 (1939); Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959). Under all these circumstances, there was no acceptable reason for the court’s refusal to permit the amendment in question. Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980), and cases cited; Enstrom v. Dixon, 354 So. 2d 1251 (Fla. 4th DCA 1978). Conclusion For the foregoing reasons, the judgment under review is reversed and the cause is remanded for further proceedings not inconsistent herewith. Af…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- Rivers v. Ross, 182 So. 2d 292 (Fla. 3d DCA 1966)
- Hall v. Holland, 47 So.2d 889 (Fla. 1950)
- Grall v. Risden, 167 So. 2d 610 (Fla. 2d DCA 1964)
- The Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977)
- Gold Coast Crane Serv., Inc. v. Watier, 257 So. 2d 249 (Fla. 1971)
- United Tel. Co. of Fla. v. Mayo, 345 So. 2d 648 (Fla. 1977)
- Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977)
- Miami Coin-O-Wash, Inc. v. McGOUGH, 195 So. 2d 227 (Fla. 3d DCA 1967)