DESIGNERS TILE INTERNATIONAL CORPORATION, APPELLANT,
v.
CAPITOL C CORPORATION, APPELLEE; R & S PARTNERSHIP, LTD., A FLORIDA LIMITED PARTNERSHIP, D/B/A RED SUNSET BUILDING AND CECILY SILVERMAN, AS TRUSTEE FOR R & S PARTNERSHIP, LTD., APPELLANTS, V. MARTIN SCHAFFEL ENTERPRISES, INC., APPELLEE
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In this consolidated negligence appeal arising from a defective roof repair, the court reversed the judgment against R & S Partnership and related defendants, holding that the trial court erred in permitting plaintiff Designers Tile to amend its complaint at the close of evidence to assert a new theory of vicarious liability, and that there was insufficient evidence to support any negligent hiring claim.
The trial court erred in allowing the amendment, which constituted a material change in the cause of action that prejudiced the defendants R & S. The defendants were entitled to a directed verdict because there was utterly no evidence presented to support the negligent hiring claim.
[1] A trial court errs in permitting a plaintiff to amend its complaint to allege a new cause of action at the close of all evidence when the amendment materially changes the…
[2] A directed verdict is required when the evidence presented does not support the cause of action pleaded.
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Join FLexlaw to unlock all legal intelligence“The change in the cause of action allowed by the amendment was, in our view, a material change which under the facts of this case greatly prejudiced the defendants R & S.”
Establishes the court's holding that the amendment materially altered the legal theory and caused unfair prejudice
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Join FLexlaw to unlock all legal intelligenceDesigners Tile brought a negligence action against R & S Partnership, Capitol C Corporation, and Cecily Silverman (collectively R & S) and Martin Scha…
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PER CURIAM.
This is a consolidated appeal from final judgments entered upon a jury verdict in a negligence action, involving both a main claim and cross claim, arising out of a defective roof repair job.
The defendants R & S Partnership, Ltd., Capitol C Corporation and Cecily Silverman [hereinafter collectively R & S] appeal the final judgment entered in favor of the plaintiff Designers Tile International, Inc. [hereinafter Designers Tile], and argue as their sole point on appeal that the trial court erred in permitting the plaintiff Designers Tile to amend its complaint at the close of all the evidence so as to allege a new cause of action against the defendants R & S, to wit: an action for vicarious responsibility for the negligence of Courtesy Roofing, the firm used in repairing the subject roof. We entirely agree. The case had been fully tried on the plaintiff Designers Tile’s claim against the defendants R & S for the negligent hiring of Courtesy Roofing when the subject amendment was allowed. The change in the cause of action allowed by the amendment was, in our view, a material change which under the facts of this case greatly prejudiced the defendants R & S.
Moreover, there was utterly no evidence presented to support the negligent hiring claim so that the defendants R & S were, as urged, entitled to a directed verdict below in their favor. See McCullough v. McCullough, 156 Fla. 821, 23 So. 2d 139, 140 (1945); Dean Co. v. U.S. Home Corp., 485 So. 2d 438, 439-40 (Fla. 2d DCA 1986); Tucker v. Daugherty, 122 So. 2d 230, 232 (Fla. 2d DCA), cert. denied, 125 So. 2d 878 (Fla.1960); see also Swilley v. Economy Cab Co. of Jacksonville, 56 So. 2d 914 (Fla.1951) (where evidence does not support cause of action pled, directed verdict required); Smith’s Bakery, Inc. v. Jernigan, 134 So. 2d 519 (Fla. 1st DCA 1961) (same).
Given our decision on the defendants R & S’s appeal as stated above, the remaining appeals herein become moot. The defendants R & S’s appeal on the cross claim against defendant Martin Schaffel Enterprises, Inc. is moot because they are not liable to the plaintiff Designers Tile; the plaintiff Designers Tile’s appeal from the final judgment, based on a claimed inadequate damage award, is moot because (a) the defendants R & S are not liable to the said plaintiff; and (b) the judgment in favor of the defendant Martin Schaffel Enterprises, Inc. has not been appealed by Designers Tile.
mhe final judgment entered in favor of the defendant Martin Schaffel Enterprises, Inc. is affirmed. The final judgment entered in favor of the plaintiff Designers Tile against the defendants R & S is reversed and the cause is remanded to the trial court with directions to enter judgment for the defendants R & S.
Affirmed in part; reversed in part.
PER CURIAM.
All parties have filed motions for rehearing in this cause, all of which are denied. We clarify our opinion, however, in one respect, namely, the effect of our decision herein is to exonerate the defendants R & S from any and all liability to any party in this cause.
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Mark N. Goldschmidt, M.D. v. Jerri Taletha Holman, 571 So. 2d 422 (Fla. 1990)…We have for review Holman ex rel. Holman v. Goldschmidt, 550 So. 2d 499 (Fla. 1st DCA 1989), based on asserted conflict with Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla.1985), and Designers Tile International Corp. v. Capital C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986), review denied, 508 So. 2d 13 (Fla.1987).1 The primary issue presented in this case is whether a complaint charging malpractice against a treating physician for the acts of a “covering” physician must specifically allege the vicar…
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Arky v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)…ns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 527 So. 2d 211 (Fla. 3d DCA 1987), based on certified conflict with Freshwater v. Vetter, 511 So. 2d 1114 (Fla. 2d DCA 1987); Designers Tile International Corp. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986), review denied, 508 So. 2d 13 (Fla. 1987); Dean Co. v. U.S. Home Corp., Inc., 485 So. 2d 438 (Fla. 2d DCA 1986); and Citizens National Bank v. Youngblood, 296 So. 2d 92 (Fla. 4th DCA 1974). We have jurisdiction. Art. V, § 3(b)(3),…
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Dimick v. RAY, 774 So. 2d 830 (Fla. 4th DCA 2000)…tions prior to trial on the merits. For instance, in McCullough v. McCullough, 156 Fla. 321, 23 So. 2d 139 (1945), Frenz Enterprises, Inc. v. Port Everglades, 746 So. 2d 498 (Fla. 4th DCA 1999), Designers Tile International Corp. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986), and Santi v. Zack Co., 287 So. 2d 127 (Fla. 3d DCA 1973), all cited in the trial court’s order, amendments were not allowed which proposed to add new and different causes of action either during trial or after the trial had been…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Swilley v. Econ. Cab Co. of Jacksonville, 56 So. 2d 914 (Fla. 1951)
- Smith's Bakery v. Jernigan, 134 So. 2d 519 (Fla. 1st DCA 1961)
- B. M. and R. L. Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960)
- McCullough v. McCullough, 156 Fla. 321 (Fla. 1945)
- The Dean Co. v. U.S. Home Corp., Inc., 485 So. 2d 438 (Fla. 2d DCA 1986)
- McCollough v. McCollough, 156 Fla. 326 (Fla. 1945)
- Siddens v. Johnson, 125 So. 2d 878 (Fla. 1960)
- Commonwealth Oil Co. v. Fla. Exploration Co., 125 So. 2d 878 (Fla. 1960)