HELEN E. MRMICH AND DARKO MRMICH, APPELLANTS,
v.
GARY JO SWITZER AND ANDREA SWITZER AND STOVA M. SWITZER, APPELLEES
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Defendants Mrmich appealed a jury verdict against them in a malicious prosecution action brought by Switzer. The Third District Court of Appeal affirmed the judgment, finding no abuse of discretion in denying defendants' late motion to amend their answer and no error in denying their motion for directed verdict.
The trial court did not abuse its discretion in denying the motion to amend because it was untimely filed at the outset of trial after nearly five years of pending litigation and without valid excuse, which would have prejudiced the plaintiff. The trial court correctly denied the motion for directed verdict because evidence showed defendants lacked probable cause to sue Switzer, as he had neither rented the trailer nor signed the required repair agreement, creating jury questions on probable cause and malice.
[1] A trial court does not abuse its discretion in denying a motion to amend an answer to assert an affirmative defense when the motion is made at the outset of trial after a…
[2] A motion for directed verdict is correctly denied when the evidence presented at trial raises jury questions regarding the plaintiff's malicious prosecution claim, includ…
Previewing 2 of 3 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“Because the plaintiff would have been greatly prejudiced by this surprise defense, the trial court was well within its discretion in denying the motion to amend.”
Establishes that late amendments to pleadings can be properly denied when they surprise the opposing party and would cause prejudice.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendants Mrmich rented a trailer to Switzer's son. When the trailer was damaged, defendants sued the son's father, Stova M. Switzer, for damages, de…
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PER CURIAM.
This is an appeal by the defendants Helen E. Mrmich and Darko Mrmich from a final judgment entered upon an adverse jury verdict in a malicious prosecution action. We affirm the final judgment under review based on the following briefly stated legal analysis.
First, the trial court did not abuse its discretion, as urged, in denying the defendants’ motion to amend their answer to assert the affirmative defense of advice of counsel. The motion was made at the outset of the trial below after the action had been pending for nearly five years; no valid excuse was offered below for waiting this long period before deciding to “spring” this defense on the day of trial. Because the plaintiff would have been greatly prejudiced by this surprise defense, the trial court was well within its discretion in denying the motion to amend. Joseph T. Miller Constr. Co. v. Borak, 82 So. 2d 147 (Fla.1955); Allett v. Hill, 422 So. 2d 1047 (Fla. 4th DCA 1982), rev. denied, 434 So. 2d 887 (Fla.1983); Thomas v. Sports Car Club of America, Inc., 386 So. 2d 272 (Fla. 4th DCA 1980); Brown v. Montgomery Ward & Co., 252 So. 2d 817 (Fla. 4th DCA 1971), cert. denied, 257 So. 2d 561 (Fla.1972).
Second, the trial court did not commit reversible error, as urged, in denying the defendants’ motion for directed verdict at trial. The evidence adduced at trial indicated, without dispute, that the plaintiff Stova M. Switzer had not rented the trailer in question and had signed no contract to repair any damage to the trailer; this being so, there was no basis whatever for the defendants’ prior suit against the plaintiff for damages to the trailer which the defendants rented to the plaintiff’s son. It is true that the plaintiff did obligate himself to sign an agreement to pay for such damages, but, without dispute, no such agreement was ever forthcoming; indeed, there is evidence that the defendants were repeatedly warned by their real estate agent that such an agreement was required. This being so, jury questions were presented on the plaintiff’s malicious prosecution action as to the defendants’ lack of probable cause and malice in bringing the prior suit, and, therefore, the defendants’ motion for directed verdict was correctly denied. Winn-Dixie Stores, Inc. v. Gazelle, 523 So. 2d 648 (Fla. 1st DCA 1988); Sears, Roebuck & Co. v. McKenzie, 502 So. 2d 940 (Fla. 3d DCA), rev. denied, 511 So. 2d 299 (Fla.1987); Hooper v. Barnett Bank of West Fla., 474 So. 2d 1253 (Fla. 1st DCA 1985), approved, 498 So. 2d 923 (Fla.1986); Northwest Fla. Home Health Agency v. Merrill, 469 So. 2d 893 (Fla. 1st DCA), rev. denied, 479 So. 2d 118 (Fla.1985).
The final point has no merit and requires no discussion. The final judgment under review is, therefore, in all respects,
Affirmed.
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Cuervo v. W. Lake Vill. II Lower Condo. Ass'n, Inc., 680 So. 2d 1059 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. See § 718.112(2)(d)(3), Fla. Stat. (1994); Soucy v. Casper, 658 So. 2d 1017 (Fla. 4th DCA 1995); Wayne Creasy Agency, Inc. v. Maillard 604 So. 2d 1235 (Fla. 3d DCA 1992); Mrmich v. Switzer, 553 So. 2d 1308 (Fla. 3d DCA 1989).…
Authorities Cited (12 total)
- Sears v. McKENZIE, 502 So. 2d 940 (Fla. 3d DCA 1987)
- Brown v. Montgomery Ward & Co., 252 So. 2d 817 (Fla. 1st DCA 1971)
- Lemon v. State, 498 So. 2d 923 (Fla. 1986)
- Milo Allett & Allstate Ins. Co. v. Hill, 422 So. 2d 1047 (Fla. 4th DCA 1982)
- Hooper v. Barnett Bank OF W. Fla., 474 So. 2d 1253 (Fla. 1st DCA 1985)
- Joseph T. Miller Constr. Co., Inc. v. Seymour H. Borak, 82 So. 2d 147 (Fla. 1955)
- Thomas v. Sports CAR Club OF Am., Inc., 386 So. 2d 272 (Fla. 4th DCA 1980)
- City OF Miami Beach v. Smith, 257 So. 2d 561 (Fla. 1971)
- Trask v. State, 257 So. 2d 561 (Fla. 1972)
- Rumlin v. Woodham, 469 So. 2d 893 (Fla. 1st DCA 1985)