ERNESTINE CHATMON, A/K/A ERNESTINE WOODARD, APPELLANT,
v.
MILFORD WOODARD, APPELLEE
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In this automobile negligence case, the defendant raised the inter-spousal immunity defense after marrying the plaintiff following the accident. The trial court granted the defendant's motion to amend the pleadings to assert this absolute defense and dismissed the case with leave to reopen for good cause. The appellate court affirmed, holding that late amendment to assert an unanswerable defense does not constitute abuse of discretion.
The trial court did not abuse its discretion in granting leave to amend the pleadings to assert the inter-spousal immunity defense, even at an advanced stage of litigation. The form of dismissal with leave to reopen upon termination of the marriage by dissolution or death is the proper disposition and is functionally equivalent to abatement pending possible termination of the marriage.
[1] A trial court does not abuse its discretion by allowing a defendant to amend an answer to assert the defense of inter-spousal immunity, even at a late stage of proceeding…
[2] Leave to amend pleadings should be freely given when justice so requires, and the court must disregard defects that do not affect substantial rights.
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Join FLexlaw to unlock all legal intelligence“Leave of court shall be given freely when justice so requires.”
Establishes the governing standard for amendments to pleadings under Florida Rules of Civil Procedure 1.190(a).
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Join FLexlaw to unlock all legal intelligencePlaintiff and defendant were involved in an automobile accident. Before suit was filed, the parties married. After some discovery and pre-trial prepar…
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SCHWARTZ, Chief Judge.
After the accident involved in this automobile negligence case, but before suit was filed, the plaintiff-appellant and the defendant-appellee were married. The defendant did not initially raise the defense of inter-spousal immunity, but after some discovery and pre-trial preparation had occurred, moved to amend the answer in order to do so. The trial judge granted the motion and thereupon dismissed the case — for administrative purposes — with leave to reopen the action “for good cause.”
On this appeal by the plaintiff, we find no abuse of discretion in granting, even at the relatively late stage to which the case had progressed, leave to amend the pleadings so as to assert an absolute, unanswerable defense to the action.1 See K.D. Lewis Enterprises Corp. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984); Costa Bella Development Corp. v. Costa Development Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984); Fla.R.Civ.P. 1.190(a) (“Leave of court shall be given freely when justice so requires.”); Fla.R.Civ.P. 1.190(e) (“At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.”).2 We distinguish De Guido v. De Guido, 308 So. 2d 609 (Fla. 3d DCA 1975), on which the appellant heavily relies, on the ground that no attempt to amend the pleadings was involved in that case.
We also approve the form of the disposition of the case in the trial court, which was the functional and practical equivalent of abating the cause of action pending the possible termination of the marriage of the parties by dissolution or death; either event would constitute the “good cause” provided for in the order of dismissal. Abatement upon those conditions is the course of action required under the circumstances by the controlling case of Gaston v. Pittman, 224 So. 2d 326 (Fla. 1969).
Affirmed.
. See Snowten v. United States Fidelity & Guaranty Co., 475 So. 2d 1211 (Fla.1985); Zimmerman v. Zimmerman, 447 So. 2d 1019 (Fla. 3d DCA 1984), approved, 478 So. 2d 350 (Fla.1985).
. It may have been appropriate to have conditioned permitting the amendment upon the defendant’s payment of the additional costs and expenses incurred by the plaintiff as a result of the apparently inexcusable tardiness in asserting the defense. See Fla.R.Civ.P. 1.190(e) ("At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading.” [e.s]); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1486 (1971); cf. Flea Market, U.S.A., Inc. v. Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986).
The plaintiff, however, did not seek that relief below and deliberately rejected it here, preferring to insist upon the untenable position that, because of the "prejudice" sustained by the delay — that is, incurring the very expenses which would have been paid under such an order — she has become entitled to maintain an action which is in fact barred by the law of Florida. We cannot accept a “gotcha” type stratagem like this one. Indeed, its assertion, in the last anaylsis, results in her having waived the right to rely upon the "prejudice” of which she supposedly complains. See State v. Belien, 379 So. 2d 446 (Fla. 3d DCA 1980).
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Aleta Shoemaker v. Shoemaker, 523 So. 2d 178 (Fla. 3d DCA 1988)…n, 379 So. 2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). However, we hold that the dismissal should have been without prejudice. The cases of Gaston v. Pittman, 224 So. 2d 326 (Fla.1969) and Chatmon v. Woodard, 492 So. 2d 1115 (Fla. 3d DCA 1986) control here. As this court held in Chatmon, “[A]bate[ment] of the cause of action pending the possible termination of the marriage of the parties by dissolution or death” is the proper disposition of a case such as this where the…
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Morris v. NN Invs. Life Ins. Co., Inc., 553 So. 2d 1306 (Fla. 3d DCA 1989)…issed as a result of that breach. I can think of no more obvious an example of the litigation-by-ambush tactics we have often and correctly condemned. See Bendeck v. Berry, 546 So. 2d 14 (Fla. 3d DCA 1989) (Cope, J., concurring); Chatmon v. Woodard, 492 So. 2d 1115, 1116 n. 2 (Fla. 3d DCA 1986); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979). Even more, I cannot agree that conduct by an attorney which is so greatly inspired by an unrestrained des…
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Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weinstein v. Heyman, 379 So. 2d 446 (Fla. 3d DCA 1980)
- Snowten v. United States Fid. & Guar. Co. & Willie Lee Snowten, 475 So. 2d 1211 (Fla. 1985)
- K.D. Lewis Enters. Corp., Inc. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984)
- Gaston v. Pittman, 224 So. 2d 326 (Fla. 1969)
- Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984)
- Flea Mkt. v. Adolf Cohen and Marlene Cohen, 490 So. 2d 210 (Fla. 3d DCA 1986)
- Sharyn Zimmerman v. Zimmerman, 447 So. 2d 1019 (Fla. 3d DCA 1984)
- de Guido v. de Guido, 308 So. 2d 609 (Fla. 3d DCA 1975)
- Sharyn Zimmerman v. Zimmerman, 478 So. 2d 350 (Fla. 1985)