JACK C. MOLINE, INDIVIDUALLY AND AS TRUSTEE, AND CHARLOTTE MOLINE, HIS WIFE, APPELLANTS,
v.
SQUARE BUILDERS OF ORMOND BEACH, INC., A FLORIDA CORPORATION, AND DR. BERNARD LEIBEL, APPELLEES
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The trial court abused its discretion in denying the defendants' motion to amend their answer to include a compulsory counterclaim.
Defendants sought to amend their answer to file a compulsory counterclaim for misrepresentation at a pretrial conference, 54 days before trial. Misrep…
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COBB, Judge.
The issue on this appeal is whether the trial court erred in denying the motion of the defendants below (the Molines) to amend their answer by filing a compulsory counterclaim against the plaintiff (Leibel). The motion was made at a pretrial conference held on October 19,1988; at that time, the trial was scheduled for December 12, 1988, some 54 days away. The motion was denied as untimely.
The matter sought to be raised by the proposed counterclaim was an alleged misrepresentation, a matter which was first raised by the Molines as an affirmative defense in an answer filed December 31, 1987. Thus, misrepresentation had been an issue in the case for some 9x/2 months at the time of the Molines’ motion to amend. There is no showing in the record, nor is it contended, that the Molines were guilty of dilatory tactics delaying the trial.
Under the foregoing circumstances, we find that the trial court abused its discretion in disallowing the amendment to include the compulsory counterclaim. See Fla.R.Civ.P. 1.170; cf. Bratcher v. Wronkowski, 417 So. 2d 1132 (Fla. 5th DCA), review denied, 424 So. 2d 760 (Fla.1982). REVERSED AND REMANDED FOR NEW TRIAL.
PETERSON and GRIFFIN, JJ., concur.
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Citator
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Bill Williams AIR Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302 (Fla. 1st DCA 1991)…d especially broadly when a compulsory counterclaim is involved; and that, in such a case, denial of leave to file the counterclaim will almost always be found to be an abuse of discretion. See, e.g., Moline v. Square Builders of Ormond Beach, Inc., 557 So. 2d 963 (Fla. 5th DCA 1990); Advanced Energy Concepts, Inc. v. Waugh, 510 So. 2d 1081 (Fla. 1st DCA 1987); Branscomb v. Ploof Truck Lines, Inc., 454 So. 2d 59 (Fla. 1st DCA 1984); Bratcher v. Wronkowski, 417 So. 2d 1132 (Fla. 5th DCA), review denied, 424 So…
Authorities Cited
- Bratcher v. Wronkowski, 417 So. 2d 1132 (Fla. 5th DCA 1982)