TRIAX, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CITY OF TREASURE ISLAND, A MUNICIPAL CORPORATION DULY ORGANIZED UNDER THE STATUTES OF THE STATE OF FLORIDA, APPELLEE
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Triax appealed the denial of its motion to amend its complaint to add a quantum meruit claim after the trial court entered final judgment against it on breach of contract grounds. The court affirmed the denial, holding that the quantum meruit issue was not tried with the parties' consent and that amendments become less favorable as litigation progresses.
The trial court did not abuse its discretion in denying the motion to amend. The quantum meruit issue was not tried with the parties' consent, and the motion was filed after final judgment when liberality in amendments is diminished.
“A trial court is authorized to permit amendments to conform with the evidence at any time. Fla.R.Civ.P. 1.15(b) (1966) (now Rule 1.190(b), 30 F.S.A.). However, its decision in such regard is a matter of broad discretion and will not be disturbed on appeal unless abuse of such discretion is demonstrated.”
Establishes the legal framework for amendments to conform with evidence and the standard of review on appeal.
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Join FLexlaw to unlock all legal intelligenceTriax's complaint alleged breach of an oral contract with the City of Treasure Island. The trial court entered final judgment in favor of the City on …
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Appellant brings this interlocutory appeal from an order denying its motion for leave to amend its complaint.
Appellant’s complaint relied for recovery upon the breach of an alleged oral contract. The trial court, sitting without a jury, entered final judgment in favor of appellee on the grounds that such contract was the result of an ultra vires act and that it ran afoul of the Statute of Frauds. Seven days later appellant filed its motion to amend, so as to conform with evidence adduced at the trial which tended to support a cause of action in general assumpsit on the theory of quantum meruit. The trial court denied the motion, finding that the issue raised thereby had not been tried with the express or implied consent of the parties and that the mo*670tion, in order to avoid prejudice to appellee, should have been filed prior to the entry of final judgment. This appeal followed.
A trial court is authorized to permit amendments to conform with the evidence at any time. Fla.R.Civ.P. 1.15(b) (1966) (now Rule 1.190(b), 30 F.S.A.). However, its decision in such regard is a matter of broad discretion and will not be disturbed on appeal unless abuse of such discretion is demonstrated. McSwiggan v. Edson, Fla.1966, 186 So.2d 13, 15; Houston Texas Gas & Oil Corp. v. Hoeffner, Fla.App.1961, 132 So.2d 38, 40. The question on appeal from an order denying a motion to amend is whether the trial court acted contrary to the dictates of justice and the essential requirements of law. Dunn v. Campbell, Fla.App.1964, 166 So.2d 217.
Rule 1.15(b) requires that the issues which are sought to be encompassed by an amendment to conform with the evidence must have been tried with the express or implied consent of the parties. The evidence adduced by appellant at the trial below was wholly consistent with the breach of contract theory stated in its complaint and was objected to by appellee on the ground of the Statute of Frauds. There was nothing in the record from which it could be inferred that the quantum meruit issue was tried by the express or implied consent of the parties, and the trial court was correct in so concluding. Cf. Neveils v. Thagard, Fla.App.1962, 145 So.2d 495, 497-498; Tucker v. Daugherty, Fla.App.1960, 122 So.2d 230, 232, cert. denied mem., Fla.1960, 125 So.2d 878. Furthermore, while our courts are generally liberal in permitting the amendment of a pleading, this liberality gradually diminishes as the case progresses. United States v. State, Fla.App.1965, 179 So.2d 890, 893. Under the circumstances at bar, the trial court’s denial of appellant’s motion to amend was not an abuse of its discretion, but was in complete compliance with the dictates of justice and the essential requirements of law. Cf. Dunn v. Campbell, supra; Houston Texas Gas & Oil Corp. v. Hoeffner, supra; Tucker v. Daugherty, supra.
The order denying appellant’s motion to amend is accordingly affirmed.
Affirmed.
LILES, C. J., and PIERCE, J., concur.
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Citator
Cited By (18 total)
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Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA 1980)…t to try the unpled and quite different damage question, so as to invoke the provisions of Fla.R.Civ.P. 1.190(b). Chandler v. Chandler, 330 So. 2d 778 (Fla. 1st DCA 1976), cert. denied, 339 So. 2d 1167 (1976); Triax, Inc. v. City of Treasure Island, 208 So. 2d 669 (Fla. 2d DCA 1968); Neveils v. Thagard, 145 So. 2d 495, 498 (Fla. 1st DCA 1962); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960), cert. denied, 125 So. 2d 878 (1960); Edwards v. Young, 107 So. 2d 244 (Fla. 2d DCA 1958); compare Batista v. Wal…
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Turner v. Trade-Mor, Inc., 252 So. 2d 383 (Fla. 4th DCA 1971)…les of Civil Procedure, 30 F.S.A. the amendment of pleadings is a matter within the broad, though not unbridled, discretion of the trial court. E. g., McSwiggan v. Edson, Fla.1966, 186 So. 2d 13; Triax, Inc. v. City of Treasure Island, Fla.App.1968, 208 So. 2d 669. However, Florida courts have long followed the policy 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.19…
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Freshwater v. Vetter, 511 So. 2d 1114 (Fla. 2d DCA 1987)…ented in the pleadings, the court, in its discretion, may allow amendments to conform to the evidence. Fla.R.Civ.P. 1.190. However, amending to state a new cause of action should not be allowed over objection. Triax, Inc. v. City of Treasure Island, 208 So. 2d 669 (Fla. 2d DCA 1968); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA), cert. denied, 125 So. 2d 878 (Fla.1960). We think the trial judge abused his discretion in this case by allowing Freshwater to amend his pleadings to state a cause of action agai…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Houston Tex. GAS & OIL Corp. v. Hoeffner, 132 So. 2d 38 (Fla. 2d DCA 1961)
- B. M. and R. L. Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960)
- United States v. State of Fla. & Cnty. of Dade, 179 So. 2d 890 (Fla. 3d DCA 1965)
- McSWIGGAN v. Murray Edson, 186 So. 2d 13 (Fla. 1966)
- Neveils v. Thagard, 145 So. 2d 495 (Fla. 1st DCA 1962)
- Dunn v. Campbell, 166 So. 2d 217 (Fla. 2d DCA 1964)
- Siddens v. Johnson, 125 So. 2d 878 (Fla. 1960)
- Commonwealth Oil Co. v. Fla. Exploration Co., 125 So. 2d 878 (Fla. 1960)
- Triax, Inc. v. City OF Treasure Island, 198 So. 2d 870 (Fla. 2d DCA 1967)