MICHAEL

v.

DRISH V. LINDA SUE BOS

CASANUEVA, Judge. Michael Drish appeals an order granting final summary judgment in favor of defendant Linda Bos in Mr. Drish's action for partition and unjust enrichment. Because the trial court erred in denying Mr. Drish's motion for leave to amend his complaint, we reverse and remand for further proceedings. In light of this disposition,

- 2 - we decline to address the issues raised on appeal concerning the merits of the summary judgment. Mr. Drish filed an action for partition and unjust enrichment against Ms. Bos after she removed his name from the title of a mobile home she purchased in Pinellas County. Ms. Bos filed a motion for summary judgment, and Mr. Drish filed a motion for leave to amend his complaint.

The trial court concluded that the amendment would be futile, was an abuse of the privilege to amend, and would prejudice the defendant; thus, the court denied the motion to amend.

The trial court then granted Ms. Bos's motion for summary judgment.

We review the denial of a motion for leave to amend a complaint under an abuse of discretion standard. Saidi v. Saqr, 207 So. 3d 991, 992 (Fla. 5th DCA 2016). It is well settled that leave to amend should be freely granted when justice requires, and public policy favors resolving cases on their merits. Id. "The Florida Rules of Civil Procedure encourage a policy of liberality in allowing litigants to amend their pleadings, especially prior to trial . . . . Absent exceptional circumstances, motions for leave to amend should be granted, and refusal to do so constitutes an abuse of discretion." Morgan v. Bank of N.Y. Mellon, 200 So. 3d 792, 795 (Fla. 1st DCA 2016) (first citing Fla. R. Civ. P. 1.190(a); then citing Thompson v. Jared Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004)). "Courts should be especially liberal when leave to amend 'is sought at or before a hearing on a motion for summary judgment.' " Saidi, 207 So. 3d at 992 (quoting Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132, 1135 (Fla. 5th DCA 1998)). Further, "all doubts should be resolved in favor of allowing the

- 3 - amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile." Id. (alterations in original) (quoting Crown v. Chase Home Fin., 41 So. 3d 978, 979-80 (Fla. 5th DCA 2010)).

We have no transcript of the hearing at which the court considered the motion for leave to amend the complaint, but the trial court's order contains detailed findings. Applying the three-prong test set out in Saidi, the trial court concluded that all three factors were present, and the court denied the motion to amend the complaint. Regarding the first factor, prejudice, the court found that the case is not in its early stages but rather had progressed to a late stage, Mr. Drish had months to file his motion to amend but failed to do so until "the eve" of Ms. Bos's scheduled summary judgment hearing, and allowing amendment "would severely prejudice Defendant." The record does not support the trial court's conclusion as to prejudice. Ms. Bos filed her motion for summary judgment on January 24, 2019, and her answer and affirmative defenses on January 28, 2019. The answer and affirmative defenses were filed only after Ms. Bos withdrew her previously filed motion for more definite statement.

On March 5, 2019, Mr. Drish filed his first and only motion to amend complaint, with the proposed amended complaint attached. The summary judgment hearing was scheduled for March 21, 2019. Under these facts, it is not accurate to say that the case was in its "late stages" when the motion for leave to amend was filed. Rather, the motion to amend was filed prior to the hearing on the motion for summary judgment, and the trial court

- 4 - should have applied the liberal standard. See id. at 992; cf. JBJ Inv. of S. Fla., Inc. v.

S. Title Grp., Inc., 251 So. 3d 173, 180 (Fla. 4th DCA 2018) ("A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment." (quoting PNC Bank, N.A. v. Progressive Emp'r Servs. II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011))). Further, "[w]hether granting the proposed amendment would prejudice the opposing party is analyzed primarily in the context of the opposing party's ability to prepare for the new allegations or defenses prior to trial." Morgan, 200 So. 3d at 795. No trial was set at the time the motion was filed. And, as discussed below, the trial court found that the proposed amended complaint presented no significant changes or new allegations.

The record does not support the trial court's conclusion that Ms. Bos would have been prejudiced by the amendment. Next, the court found that Mr. Drish had abused the privilege to amend, finding that the filing of the motion shortly before the summary judgment hearing was "highly suspect," the amendments to the complaint do not add anything to Mr. Drish's case, and "to the extent Plaintiff has added an additional count, it is a difference with no distinction." The record does not support a conclusion that Mr. Drish abused the privilege of amendment when he filed his first motion to amend well in advance of the summary judgment hearing. In JBJ Investments, the court found that the plaintiff "did not abuse the privilege to amend, as there were no prior amendments to the complaint." 251 So. 3d at 180; see also Morgan, 200 So. 3d at 795 ("Appellant has not abused the privilege to amend, because the denied motion at issue was the first time she sought to

- 5 - amend her answer."). Here, the motion to amend was Mr. Drish's first, it was filed more than two weeks prior to the summary judgment hearing, no trial was scheduled, and the motion was filed only six weeks after Ms. Bos filed her answer and affirmative defenses. Further, assuming the trial court was correct that the amendment did not represent a significant change to Mr. Drish's case, under the fact presented here, this would weigh against prejudice and abuse of the privilege, not in favor of it.

Finally, we consider the third factor, futility.

Rule 1.190(a) "is generally interpreted to allow a plaintiff to amend his complaint at least one time in an attempt to state a cause of action unless it is clear that a plaintiff cannot in good faith allege a set of circumstances sufficient to state a cause of action." Grove Isle Ass’n v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1095 (Fla. 3d DCA 2014) (quoting Lambrix v. Dugger, 547 So. 2d 1265, 1265 (Fla. 1st DCA 1989)).

For example, "[c]ourts have held that proposed amendments are futile when they are not pled with sufficient particularity or are 'insufficient as a matter of law.' " Morgan, 200 So. 3d at 796 (quoting Thompson v. Bank of N.Y., 862 So. 2d 768, 770 (Fla. 4th DCA 2003)).

In finding that Mr. Drish's amendment would be futile, the court found that there was no meaningful difference between the proposed amended complaint and the original complaint, and that "no logical reading of the proposed amended complaint would improve Plaintiff's litigation posture in this case." What the court did not find is that Mr. Drish clearly could not allege a set of circumstances sufficient to state a cause of action. While the court ultimately granted a motion for summary judgment against Mr. Drish, that summary judgment was based on Mr. Drish's original complaint for

- 6 - partition and unjust enrichment, and it was a ruling on summary judgment, not failure to state a cause of action.¹ KELLY and SLEET, JJ., Concur. 1Further, Mr. Drish's proposed amended complaint added a count for declaratory relief as to the propriety of Ms. Bos's action in removing Mr. Drish's name from the mobile home title and seeking declaratory relief as to the assignment of a land lease, which was assigned to and is apparently still held by Mr. Drish and Ms. Bos jointly and severally. There is no analysis or finding that the count for declaratory action was insufficient as a matter of law.