ANNE M. FOUTS, APPELLANT,
v.
LOUIS MARGULES, D/B/A MODERN INTERIORS, APPELLEE
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The court held that the trial court erred in dismissing the complaint with prejudice and denying leave to amend, as the allegations, while insufficient, did not preclude the existence of a cause of action.
The plaintiff, a business invitee in the defendant's store, fell over an exposed iron bed frame in the rear portion of the store. The complaint allege…
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PEARSON, Judge.
The plaintiff appeals from an order dismissing her complaint with prejudice. The trial judge ruled that the complaint was not amendable. The complaint sounds in tort and the allegations purporting to set forth negligence are clearly insufficient. These allegations do not, however, preclude the existence of a cause of action; therefore, that portion of the order of dismissal, dismissing the cause with prejudice and denying the privilege of amendment, is reversed.
That allegations of the complaint pertaining to the duty and the breach thereof are, if summarized in the light most favorable to the pleader, to the effect that the plaintiff was a business invitee in the defendant’s place of business, where she was directed by the sales woman into the rear portion of the defendant’s store in order to inspect merchandise for purchase. Further that she there fell over an exposed iron frame hollywood bed. ' No further particulars are given except by vvay of conclusion that the frame bed was left in a dangerous place.
It is strenuously urged that the plaintiff should have seen the article over which she stumbled and cut herself. Possibly she should have done so, but it cannot be said to be conclusively' true from the scanty allegations of the complaint. Leave to amend should not be denied unless, and until the privilege to amend has been abused. This is true even though the trial judge is of the opinion that the proffered amendments would not result in the statement of a cause of action. Rule 1.15, 1954 Rules of Civil Procedure, 30 F.S.A.; Slavin v. McCann Plumbing Co., Fla. 1954, 73 So. 2d 902; Town of Coreytown v. State ex rel. Ervin, Fla.1952, 60 So. 2d 482, 487, and cases therein cited. Of course this rule does not preclude a dismissal with prejudice where the complaint is clearly not amendable.
Affirmed in part and reversed in part.
CARROLL, CHAS., C. J., and HORTON, J., concur.
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Citator
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Blue v. Weinstein, 381 So. 2d 308 (Fla. 3d DCA 1980)…defendants were entitled to at least one opportunity to amend and replead their claim. Petterson v. Concrete Construction, Inc., 202 So. 2d 191, 197 (Fla. 4th DCA 1967); Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959); [*312] Fouts v. Margules, 98 So. 2d 394 (Fla. 3d DC A 1957). We should note, however, that the error committed was understandable in view of the unfortunate conflict in our decisions. We hope we have eliminated this conflict for the future guidance of the bench and bar.2 IV The order of…
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Turner v. Trade-Mor, Inc., 252 So. 2d 383 (Fla. 4th DCA 1971)…y of allowing litigants to amend pleadings freely in order that causes may be tried on their merits. Town of Coreytown v. State ex rel. Ervin, Fla.1952, 60 So. 2d 482; Richards v. West, Fla.App.1959, 110 So. 2d 698; Fouts v. Margules, Fla.App. 1957, 98 So. 2d 394. It is likewise the rule that amendments to pleadings should be allowed where the basic cause of action is not changed. McNayr v. Cranbrook Investments, Inc., Fla.1963, 158 So. 2d 129; contra, if amendments would change the basic issue or materiall…
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Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959)…7, 129 So. 835, contains a passing reference to the “good faith” rule. See also Redfearn, Wills and Administration of Estates in Florida 296 (2d ed. 1946). . Florida Rules of Civil Procedure, Rule 1.15, 30 F.S.A. . Fouts v. Margules, Fla.App.1957, 98 So. 2d 394, and cases cited therein. . Fla.Stats.1957, § 733.16, F.S.A. . Fla.Stats.1957, § 733.18, F.S.A. . Fla.Stats.1957, § 733.16, F.S.A. If the alternative procedure is used, plaintiff is precluded from recovering suit costs or attorneys fees. .A disc…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Town of Coreytown v. State Ex Rel. Ervin, 60 So.2d 482 (Fla. 1952)
- Slavin v. McCann Plumbing Co., 73 So. 2d 902 (Fla. 1954)