AMERICAN LADDER & SCAFFOLD COMPANY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
THE MIAMI VENTILATED AWNING COMPANY, INC., A FLORIDA CORPORATION, APPELLEE
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The appellate court reviewed a trial court's dismissal of a complaint. While the dismissal for failing to properly identify the defendant was correct, the court held that the plaintiff should have been allowed to amend the complaint to clarify the defendant's identity.
The trial court correctly dismissed the original complaint for failing to state a cause of action. However, it erred in denying the appellant the right to amend its complaint to allege that the party in the agreement was the same as the appellee.
“But, we hold it was error to deny the appellant the right to amend its complaint in an effort to allege that Miami Ventilated Awning and the appellee were, in fact, one and the same.”
Establishes the appellate court's finding that the trial court erred in denying leave to amend.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a complaint against the appellee based on a written rental and indemnification agreement. The complaint failed to explicitly state…
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Appellant seeks review of an order and final judgment of the trial court dismissing its original complaint, without leave to amend, seeking the relief against the appel-lee, The Miami Ventilated Awning Company, Inc., upon a written instrument providing for the rental of certain equipment belonging to the appellant to Miami Ventilated Awning, and providing in said agreement for certain indemnification of the appellant by Miami Ventilated Awning.
The complaint failed to allege that Miami Ventilated Awning and the appellee, The Miami Ventilated Awning Company, Inc., were one and the same. No error is demonstrated in the trial court’s dismissal of the original complaint for failure to state a cause of action against the appellee. But, we hold it was error to deny the appellant the right to amend its complaint in an effort to allege that Miami Ventilated Awning and the appellee were, in fact, one and the same. This court is committed to the doctrine that leave to amend should be freely given. See: Wilensky v. Perell, Fla.1954, 72 So.2d 278; Richards v. West, Fla.App.1959, 110 So.2d 698; Rule 1.15, Florida Rules of Civil Procedure, 30 F.S.A. Counsel for the appellee urges that the effect of permitting an amendment would be to violate the Statute of Frauds in that, in fact, any amendment would change the agreement. However, it is apparent that any such proposed amendment would not be an alteration of the written agreement but, in fact, would only be an amendment to further identify the actual party to the agreement. See: Sweet v. Ranger Realty Co., 108 Fla. 249, 146 So. 199; Laws v. Ranger Realty Co., 110 Fla. 113, 148 So. 583; § 608.48, Fla.Stat. F.S.A., 13 Am.Jur., Corporations, § 133; 7 Fla.Jur., Corporations, § 53; Fletcher Cyclopedia Corporations, Vol. 6, § 2443 (perm. ed. rev. repl. 1950).
Therefore, the order and final judgment here under review is reversed insofar as it denied the appellant leave to file an amended complaint, with directions to permit an amendment within a day certain.
Affirmed in part; reversed in part, with directions.
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Resorts Int'l, Inc. v. Charter AIR Ctr., Inc., 503 So. 2d 1293 (Fla. 3d DCA 1987)…eadings did not allege that assignment of debt had been made by a nonparty to the plaintiff, plaintiff was not entitled to recover on this theory which was different from the complaint); American Ladder & Scaffold Co. v. Miami Ventilated Awning Co., 150 So. 2d 268 (Fla. 3d DCA 1963) (where complaint failed to allege that a nonparty and the defendant were one and the same, plaintiff failed to state a cause of action). The trial court also erred in awarding Charter damages for both its lost profits and its exp…
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Morton v. Mercantile Nat'l Bank OF Miami Beach, 185 So. 2d 172 (Fla. 3d DCA 1966)…rvice, Inc. The variance does not render the guaranties ineffective. See Schulze v. Light, Tex.Civ.App. 1940, 143 S.W. 2d 200. Appellants’ reliance upon American Ladder & Scaffold Company, Inc. v. Miami Ventilated Awning Company, Inc., Fla.App.1963, 150 So. 2d 268, is not well-founded because we dealt there with two different names. There was no showing that “Miami Ventilated Awning” was either a corporation or a partnership or an individual doing business under a trade name. Appellants further urge error up…
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Wooten v. Wooten, 213 So. 2d 292 (Fla. 3d DCA 1968)…e, 30 F.S.A., provides: “At any time in the furtherance of justice * * the court may permit any * * * pleading or record to be amended * * Leave to amend should be liberally granted. American Ladder & Scaf. Co. v. Miami Vent. Awn. Co., Fla.App.1963, 150 So. 2d 268. But leave to amend is discretionary with the trial judge. We do not think it has been demonstrated that under the circumstances of this case, the trial judge abused his discretion in denying the privilege of amendment at such a late stage in the pr…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959)
- Wilensky v. Perell, 72 So. 2d 278 (Fla. 1954)
- Commercial Credit Corp. v. Boswell, 108 Fla. 213 (Fla. 1933)
- Zelia Wilson Sweet v. Ranger Realty Co., 108 Fla. 249 (Fla. 1933)
- Whitehurst v. Alsie Owens, 110 Fla. 113 (Fla. 1933)