CLYDE W. CARTER, APPELLANT,
v.
JOSEPH C. FERRELL, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Carter appealed the trial court's denial of his motion to amend pleadings to add counterclaims and defenses against Ferrell in a mortgage foreclosure action. The appellate court reversed the amendment denial, finding an abuse of discretion, while affirming the dismissal of Carter's improperly titled third-party complaint.
The trial court abused its discretion in denying the motion to amend. Under Florida's liberal pleading amendment policy, amendment should be freely allowed unless it would clearly prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. The court affirmed the dismissal of the third-party complaint but reversed the denial of the amendment motion and remanded for Carter to amend his pleadings.
[1] A trial court abuses its discretion by denying a motion to amend pleadings when the amendment would not prejudice the opposing party, the privilege to amend has not been…
[2] A trial court's refusal to grant a continuance to cure potential prejudice from an amendment to pleadings may constitute an abuse of discretion, especially when the case…
Previewing 2 of 4 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“The public policy of Florida is to freely allow amendment of pleadings.”
Establishes the strong Florida policy favoring liberal amendment of pleadings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCarter owned property encumbered by first and second mortgages held by the original foreclosing parties and Ferrell, respectively. Ferrell filed a cro…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Futile Amendment cases and more on FLexlaw
RYDER, Acting Chief Judge.
Clyde Carter seeks review of the lower court’s denial of his motion to amend his pleadings to file counterclaims and defenses to Joseph Ferrell’s cross claims against him. He also challenges the court’s dismissal of his erroneously titled “third party complaint” against Ferrell. We find no error in the dismissal of the third party complaint, and affirm on that issue. We do, however, agree that Carter should have been allowed to amend his pleadings to assert his claims against Ferrell, and, therefore, reverse on the first issue.
This action began as a suit against Carter to foreclose a first mortgage encumbering property he owned. The foreclosure of that mortgage has been resolved and the first mortgagees are not parties to this appeal. Ferrell was joined as a defendant in the suit because he held a junior mortgage on Carter’s property. Ferrell filed a cross claim against Carter to foreclose his second mortgage. Carter, who was not represented at the time, attempted to allege the defense of payment against Ferrell by filing a “third party complaint.” The lower court dismissed this complaint, but allowed Carter to assert the defense. Trial on all issues was set for October 25,1993.
Carter retained counsel, who filed a notice of appearance on September 9,1993, approximately nine months after the original suit was instituted.
On October 6,1993, Carter’s counsel moved for leave to file counterclaims and defenses to Ferrell’s cross claim. A copy of the proposed pleading was attached to his motion. Carter asked that the trial be continued so he could file his amended pleading. The court denied both his motion to amend and his motion to continue. In fact, however, the trial was continued because of scheduling conflicts to January 17, 1994.
On January 11,1994, Carter petitioned this court for certiorari review of the lower court’s written order denying his motion to amend his pleadings, rendered December 21,1993. We denied his petition without opinion on April 29,1994. Carter then renewed his motion to amend in the trial court on May 2, 1994. The court again denied his motion, and set the trial for October 10, 1994. After trial, the court entered judgment in favor of Carter on Ferrell’s complaint to foreclose his second mortgage.
Both Carter and Ferrell have presented argument on the issue of whether Carter’s claims were compulsory counterclaims to Ferrell’s cross claim. We do not need to reach this issue to decide this case, so we will not discuss it. The public policy of Florida is to freely allow amendment of pleadings. Craig v. East Pasco Medical Center, Inc., 650 So. 2d 179 (Fla. 2d DCA 1995); Ohio Cas. Ins. Co. v. MRK Const, Inc., 602 So. 2d 976 (Fla. 2d DCA 1992); Fla.R.Civ.P. 1.190(a) (leave of court shall be given freely, when justice so requires, to allow pleadings to be amended).
Although Carter’s request initially came just before trial, the case had been pending less than a year. While we recognize that a trial court’s ruling on an amendment rests within its sound discretion, refusal to allow an amendment constitutes an abuse of discretion unless it clearly appears that the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991), review dismissed, 598 So. 2d 76 (Fla.1992).
Any potential prejudice to Ferrell could have been cured by granting a continuance, and, as it turned out, the ease was in fact continued for reasons unconnected to the motion.
Moreover, this was Carter’s first request to amend his pleadings. Under these circumstances, we hold that the trial court abused its discretion when it denied the motion to amend. Because Carter has prevailed on Ferrell's claim against him, his motion to add affirmative defenses is now moot.
We reverse and remand to the trial court to permit Carter to amend his pleadings to add his counterclaims against Ferrell.
Affirmed in part, reversed in part and remanded.
LAZZARA and WHATLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
EAC USA, Inc. v. Kawa, 805 So. 2d 1 (Fla. 2d DCA 2001)…a. 1st DCA 1993). The failure to permit amendment constitutes an abuse of discretion unless it clearly appears the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Carter v. Ferrell, 666 So. 2d 556 (Fla. 2d DCA 1995). Leave to amend is likewise appropriate when the amendment is based on the same conduct, transaction, or occurrence as the original claim. Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977). The trial court abused its discreti…
-
Video Indep. Med. Examination, Inc. v. City OF Weston, 792 So. 2d 680 (Fla. 4th DCA 2001)…on 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.” Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1st DCA 1993); accord Carter v. Ferrell, 666 So. 2d 556, 557 (Fla. 2d DCA 1995). The privilege to amend has not been abused here, nor would allowing appellant to amend its complaint prejudice appellee as the case is only in the pleading stage which leaves appellee ample time to answer and prepare a defe…
-
S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56 (Fla. 2d DCA 2011)…dings, refusal to permit an amendment constitutes an abuse of discretion unless (1) the privilege to amend has been abused, (2) the amendment would [*63] be futile, or (3) the amendment would prejudice the opposing party. See id.; Carter v. Ferrell, 666 So. 2d 556, 557 (Fla. 2d DCA 1995). Here, the record does not show that CAT established that any of these three exceptions to the liberal policy of permitting amendments existed. First, Southern had not abused its privilege to amend because it had not sought…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bill Williams AIR Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302 (Fla. 1st DCA 1991)
- Ohio Cas. Ins. Co. v. MRK Constr., Inc., 602 So. 2d 976 (Fla. 2d DCA 1992)
- Craig v. E. Pasco Med. Ctr., Inc., 650 So. 2d 179 (Fla. 2d DCA 1995)