JOHN DAUSMAN, APPELLANT,
v.
HILLSBOROUGH AREA REGIONAL TRANSIT, APPELLEE
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John Dausman appealed a summary judgment dismissing his whistleblower complaint against HART for failing to state a cause of action under the private sector whistleblower act. The court reversed, holding that the trial court abused its discretion in denying Dausman's motion to amend his complaint to cite the public sector whistleblower act instead, as the amendment was based on the same conduct and should relate back to the original complaint.
The trial court abused its discretion in denying the amendment request. The amendment was properly requested before final summary judgment was rendered, was based on the same conduct as the original claim, and merely changed the legal theory of the action. Under Florida Rule of Civil Procedure 1.190(c), the amendment relates back to the date of the original pleading.
[1] Leave to amend a pleading should be freely given when justice requires, particularly when the amendment is based on the same conduct, transaction, and occurrence as the o…
[2] A trial court abuses its discretion by denying a request to amend a complaint made before final judgment when the amendment is based on the same underlying conduct and me…
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Join FLexlaw to unlock all legal intelligence“Leave of court [to amend pleadings] shall be given freely when justice so requires.”
Establishes the foundational rule that amendments should be freely permitted under Florida Rule of Civil Procedure 1.190(a)
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Join FLexlaw to unlock all legal intelligenceDausman filed a complaint against Hillsborough Area Regional Transit (HART) alleging whistleblower retaliation under the private sector whistleblower …
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WHATLEY, Judge.
John Dausman appeals the final summary judgment that dismissed with prejudice his complaint against Hillsborough Area Regional Transit (HART) on the ground that he failed to state a cause of action under the private sector whistle blower act, § 448.102, Fla. Stat. (2003). Dausman argues that the trial court erred in denying his motion for rehearing in which he sought to . amend his complaint to allege a violation of the public sector whistle blower act, § 112.3187, Fla. Stat. (2003), and to have the court declare that the amendment related back to the original complaint in order to avoid the running of the public act’s statute of limitations. We reverse.
Dausman filed his motion for rehearing after the hearing on. HART’s motion for summary judgment at which the trial court orally announced that it was granting HART’s motion, but before a final summary judgment was rendered. Attached as an exhibit to the motion for rehearing was Dausman’s proposed second amended complaint, which was identical to his previous amended complaint except that it cited the public sector whistle blower act and it alleged that HART was an agency as defined in the public act.
“A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment. According to Florida Rule of Civil Procedure 1.190(a), ‘Leave of court [to amend pleadings] shall be given freely when justice so requires.’ ” Yun Enters., Ltd. v. Graziani, 840 So. 2d 420, 422 (Fla. 5th DCA 2003) (citations omitted). “Leave to amend should be freely given, the more so ... when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought.” Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So. 2d 968, 970 (Fla. 5d DCA 1994) (citing Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137, 141 (Fla. 3d DCA 1977)).
The decision whether to allow the amendment of a pleading is within the trial court’s discretion. Graziani, 840 So. 2d 420. “However, the trial court’s discretion should be exercised in accordance with the public policy of this state to freely allow amendments so that cases may be resolved on their merits.” Craig v.
E. Pasco Med. Ctr., Inc., 650 So. 2d 179, 180 (Fla. 2d DCA 1995).
The trial court abused its discretion in denying Dausman’s request to amend his complaint because the request was made before final summary judgment was rendered and because the amendment was based on the same conduct upon which the original claim was brought; it merely changed the legal theory of the action. “ ‘[A]n amendment which merely ... changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim.’ ” Holley v. Innovative Tech. of Destin, Inc., 803 So. 2d 749, 750 (Fla. 1st DCA 2002) (quoting Kiehl v. Brown, 546 So. 2d 18, 19 (Fla. 3d DCA 1989)). See Fla. R. Civ. P. I.190(c) (“Relation back of amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.”).
Accordingly, we reverse the final summary judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
ALTENBERND, C.J., and FULMER, J., Concur.
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Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010)…2d DCA 1996) (finding that the trial court’s denial of the plaintiffs motion to amend [*870] “was an abuse of discretion in light of Florida’s liberal policy of allowing amendments to pleadings”); see also Dausman v. Hillsborough Area Reg’l Transit, 898 So. 2d 213, 215 (Fla. 2d DCA 2005) (“Leave to amend should be freely given, the more so ... when the amendment is based on the same conduct, transaction[,] and occurrence upon which the original claim was brought.” (first alteration in original) (quoting Spols…
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JVN Holdings, Inc. v. Am. Constr. & Repairs, LLC, 185 So. 3d 599 (Fla. 3d DCA 2016)…rsing trial court’s denial of plaintiffs oral motion to amend complaint, made at the hearing on defendant’s motion for summary judgment); Haag v. Phillips, 333 So. 2d 507 (Fla. 2d DCA 1976) (same). See also Dausman v. Hillsborough Area Reg. Transit, 898 So. 2d 213 (Fla. 2d DCA 2005) (holding trial court abused its discretion in denying plaintiffs motion to amend complaint where motion was made after trial court orally granted summary judgment but before rendition of the final summary judgment). We vacate the…
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The Est. OF Roberta Eisen v. Philip Morris USA, Inc., 126 So. 3d 323 (Fla. 3d DCA 2013)…91 So. 3d 893, 895 (Fla. 5th DCA 2012) (holding that the rule is to be liberal [*329] ly interpreted, and observing that the underlying “rationale for this rule is grounded in the notion of fair notice”); Dausman v. Hillsborough Area Reg’l Transit, 898 So. 2d 213, 215 (Fla. 2d DCA 2005) (noting that leave to amend “should be freely given, the more so ... when the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought”) (quoting Spolski Gen. Contractor, In…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977)
- YUN Enters., Ltd. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003)
- Otto B. Kiehl and James H. Smith v. Brown, 546 So. 2d 18 (Fla. 3d DCA 1989)
- Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. OF Cent. Fla., Inc., 637 So. 2d 968 (Fla. 5th DCA 1994)
- Craig v. E. Pasco Med. Ctr., Inc., 650 So. 2d 179 (Fla. 2d DCA 1995)
- Holley v. Innovative Tech. OF Destin, Inc., 803 So. 2d 749 (Fla. 1st DCA 2001)