EDWARD FRED MUSSLER, JR., AND REBECCA MUSSLER D/B/A WPS SYSTEMS, INC.; AND WATER EQUIPMENT MANUFACTURERS, INC., APPELLANTS,
v.
COMPUTER LEASING OF FLORIDA, INC., A FLORIDA CORPORATION, A DIVISION OF FINANCE AND INVESTMENT COMPANY, INC., AN ALABAMA CORPORATION, AND RAY GARRETT GANN, APPELLEES
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The Fourth District Court of Appeal reversed a summary judgment in favor of Computer Leasing of Florida because the trial court granted the motion for summary judgment before the mandatory twenty-day waiting period had elapsed from the filing of the amended complaint, which constituted a new commencement of the action.
Yes. The filing of the amended complaint constituted a commencement of the action for purposes of the twenty-day waiting period required by Rule 1.510(a), Florida Rules of Civil Procedure. Because the summary judgment motion was filed fewer than twenty days after the amended complaint was filed, it was premature.
[1] An amended complaint that contains material and substantial changes supersedes the original complaint, constituting a new commencement of the action for procedural purpos…
[2] A plaintiff may not move for summary judgment until twenty days have elapsed from the commencement of the action, as defined by the filing of the operative complaint.
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Join FLexlaw to unlock all legal intelligence“Within the meaning and clear intention of this rule the "commencement of the action" was June 9, 1952, the date the amended bill of complaint was filed.”
Establishes that filing of an amended complaint marks the commencement of the action for purposes of the twenty-day waiting period
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Join FLexlaw to unlock all legal intelligenceAppellees filed an original complaint against appellants for breach of a lease agreement. A motion to dismiss was pending when appellees filed a motio…
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DELL, Judge.
Appellants claim that the trial court erred when it granted appellees’ motion for partial final summary judgment. We agree. Appellee filed its original complaint against appellants seeking damages for breach of a lease agreement. The day before a pending motion to dismiss the complaint was granted appellees filed a motion for summary judgment. The original complaint was dismissed and appellee was given ten days to amend. The amended complaint was filed fifteen days after the motion for summary judgment. The trial court entered its order granting summary judgment seventeen days after the amended complaint was filed.
Review of the record shows that appel-lees’ amended complaint superseded the original complaint. Unlike the complaint in Coffman Realty, Inc. v. Tosohatchee Game Reserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980), the amended complaint here contained material and substantial changes from those alleged in the original complaint. Appellees’ amended complaint is more akin to that considered by the court in Babb v. Lincoln Auto Finance Co., 133 So. 2d 566, 568 (Fla. 3d DCA 1961):
Plaintiffs were then granted leave to amend and filed an amended complaint which was complete in itself and did not refer to or adopt the original complaint. This constituted an abandonment of the original complaint which was superseded, ceased to be a part of the record and could no longer be used as a pleading. At this stage in the proceedings, plaintiffs’ only pleading was the amended complaint, (citations omitted).
In our view, the filing of the amended complaint constituted commencement of the action for purposes of determining compliance with the rule regarding summary judgments. Rule 1.510(a), Florida Rules of Civil Procedure provides that the plaintiff may move for summary judgment “... at any time after the expiration of twenty days from the commencement of the action....” In Wood v. Kleaveland, 64 So. 2d 684 (Fla.1953), the plaintiff moved for summary judgment four days after the filing of an amended complaint. The supreme court said:
Within the meaning and clear intention of this rule the “commencement of the action” was June 9, 1952, the date the amended bill of complaint was filed.
Id. at 684.
Appellees’ motion for summary judgment was filed less than twenty days after the commencement of the action. Accordingly, we reverse on the authority of Wood.
REVERSED and REMANDED.
HERSEY, C.J., and GUNTHER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Bryant v. State, 901 So. 2d 810 (Fla. 2005)…e trial court granted plaintiff ten days to amend the complaint); Freeman v. Mintz, 523 So. 2d 606, 608 (Fla. 3d DCA 1988) (noting that the trial court granted plaintiff twenty days to amend the complaint); Mussler v. Computer Leasing of Fla., Inc., 511 So. 2d 1124, 1124-25 (Fla. 4th DCA 1987) (noting that trial court granted plaintiff ten days to amend the complaint). Extending the same courtesy to defendants filing postconviction motions will not unduly delay the proceedings. Therefore, we hold that when a d…
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Soho Realty, LLC v. THE Alexander Condo. Ass'n, Inc. (Fla. 3d DCA 2019)…ously filed complaints. Coffman Realty, Inc. v. Tosohatchee Game Pres., Inc., 381 So. 2d 1164, 1166 (Fla. 5th DCA 1980). Thus, “[t]he bottom line [was] still the same for both complaints.” Id.; see also Mussler v. Comput. Leasing of Fla., Inc., 511 So. 2d 1124, 1125 (Fla. 4th DCA 1987) (finding that the trial court erred in granting summary judgment as the amended complaint “contained material and substantial changes from those alleged in the original complaint” and the plaintiff’s motion for summary judg…
Authorities Cited
- Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980)
- Babb v. Lincoln Auto Fin. Co., 133 So. 2d 566 (Fla. 3d DCA 1961)
- Wood v. Kleaveland, 64 So. 2d 684 (Fla. 1953)