DOROTHY C. MARGOLIS, APPELLANT,
v.
ALEXANDER S. KLEIN, JR., ALLAN B. MARGOLIS, JOSEPH LIEDMAN, BENJAMIN SCHWARTZ, CONSOLIDATED COMMUNICATIONS CORPORATION, A FLORIDA CORPORATION, AND COMMUNITY SERVICE BROADCASTERS, INC., AN OHIO CORPORATION, APPELLEES
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The appellate court affirmed the trial court's dismissal of a counter and cross claim, holding that the appellant failed to seek leave to amend the claim in the lower court.
No, the trial court did not err because the appellant failed to apply for leave to amend her counter and cross claim, and the appellate court cannot find error without the trial court having had an opportunity to rule on the matter.
“It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him.”
Establishes the legal principle that a trial court must have an opportunity to rule on an issue before an appellate court can find error.
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Join FLexlaw to unlock all legal intelligenceDorothy C. Margolis, the defendant, appealed an order that dismissed her counter and cross claim. She argued that the trial court erred by not allowin…
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The defendant, Dorothy C. Margolis, by this interlocutory appeal, seeks to review that portion of an order dismissing her counter and cross claim. The defendants urged that the trial court erred in failing to permit leave to amend the counter and cross claim. However, we fail to find any application to the trial court in the record to allow such an amendment.
It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him. Wasserburg v. Coastal Aluminum Products Const. Co., Fla.App. 1964, 167 So.2d 889; Paul v. Kanter, Fla. App.1963, 155 So.2d 402. This is clearly contemplated by Rule 1.15(a) Florida Rules of Civil Procedure, 30 F.S.A. Therefore, although the counter and cross claim might have been amendable without any application to the trial judge, we are not in a position to hold that error was committed in this regard.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Evelyn Amazon v. Davidson, 390 So. 2d 383 (Fla. 5th DCA 1980)…of fraud without trial.” Alepgo Corporation v. Pozin, 114 So. 2d 645 (Fla. 3d DCA 1959). . As a general rule, before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him. Margolis v. Klein, 184 So. 2d 205 (Fla. 3d DCA 1966). An amendment to the pleadings is therefore usually necessary where issues are sought to be litigated which are not raised by the pleadings. See Fla.R.Civ.P. 1.190.…
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Fla. Power & Light Co. v. Sys. Council U-4 OF the Int'l Bhd. OF Elec. Workers, AFL-CIO, 307 So. 2d 189 (Fla. 4th DCA 1975)…pinion that the pleading is a nullity. As such the court and the litigants are entitled to ignore it and to determine the controversy on the basis of existent properly filed pleadings. Meredith v. Long, supra. In this same line is Margolis v. Klein, 184 So. 2d 205 (3d D.C.A. Fla.1966), although its underlying procedural posture was dif [*193] ferent. There the trial court was affirmed with this statement, “The defendant, Dorothy C. Margolis, by this interlocutory appeal, seeks to review that portion of an or…
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Johnson v. RCA Corp. & The Travelers Ins. Co., 395 So. 2d 1262 (Fla. 3d DCA 1981)…dismissal with prejudice and failure to then move for a rehearing requesting leave to amend, precludes raising issue for first time on appeal. Fla.R.Civ.P. 1.190(a); Hohenberg v. Kirstein, 349 So. 2d 765 (Fla. 3d DCA 1977) citing Margolis v. Klein, 184 So. 2d 205 (Fla. 3d DCA 1966); Ely v. Shuman, 233 So. 2d 169 (Fla. 3d DCA 1970).…
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
- Fay S. Paul v. Risa Bonnie Kanter & the Hertz Corp., 155 So. 2d 402 (Fla. 3d DCA 1963)
- Hubbard v. State, 167 So. 2d 889 (Fla. 2d DCA 1964)