JOEL C. STRICKLAND, JR., APPELLANT,
v.
ST. PETERSBURG AUTO AUCTION, INC., A FLORIDA CORPORATION, HAZEL M. STRICKLAND, JOEL C. STRICKLAND, III, AND UNITED WARRANTIES, INC., A FLORIDA CORPORATION, APPELLEES
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Joel C. Strickland, Jr. appeals a judgment against him, challenging the trial court's decision to permit an amendment to the plaintiff's complaint that changed the legal theory from fraudulent misrepresentation against all defendants to conversion against Strickland alone. The appellate court affirmed, holding that trial courts have broad discretion under Florida Rule 1.190(b) to permit such amendments to conform to evidence, and the trial court did not abuse its discretion because Strickland was offered an opportunity to continue and declined.
The trial court did not err. Under Florida Rule 1.190(b), trial courts have broad discretion to permit amendments to pleadings at any time to conform to the evidence, even when such amendments change the legal theory on which relief is sought, as long as the legal issues have been tried by express or implied consent of the parties. The trial court's discretion will only be reversed on appeal upon demonstration of an abuse of discretion. Here, Strickland was not disadvantaged because he was offered a continuance to prepare further and declined it.
[1] Trial courts have the authority to permit amendments to pleadings at any time to conform to the evidence, even if the amendment changes the legal theory of recovery.
[2] Amendments to pleadings that raise issues tried by express or implied consent of the parties are permissible under Florida Rule of Civil Procedure 1.190(b).
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Join FLexlaw to unlock all legal intelligence“trial courts have the authority to permit amendments to pleadings at any time in order to cause them to conform to the evidence by raising issues which have been tried by the express or implied consent of the parties, even though such amendments might change the legal theory on which relief is sought”
Establishes the governing legal rule that amendments may change legal theories if the issues were tried by consent
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Join FLexlaw to unlock all legal intelligenceAt trial, plaintiff sought to recover against all defendants (St. Petersburg Auto Auction, Inc., Hazel M. Strickland, Joel C. Strickland, III, and Uni…
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This is an appeal from a final judgment rendered by the Circuit Court for Orange County, Florida, against Joel C. Strickland, Jr., the appellant here and one of the defendants below.
The issue presented to this court is whether or not the trial court erred in allowing the plaintiff at the close of its case in chief to amend its complaint where such amendment changed the legal theory upon which plaintiff sought to recover from fraudulent misrepresentation by all the defendants to conversion by the defendant Joel C. Strickland, Jr. (Compare Douglas Motor Sales, Inc. v. Cy Owens, Inc., 1959, 99 Ga.App. 890, 109 S.E.2d 874.)
Under Rule 1.190(b), F.R.C.P., 30 F.S.A., trial courts have the authority to permit amendments to pleadings at any time in order to cause them to conform to the evidence by raising issues which have been tried by the express or implied consent of the parties, even though such amendments might change the legal theory on which relief is sought. See 25 Fla.Jur., Pleadings § 110 (1959); 3 Moore’s Federal Practice 2d, § 15.13 [1 and 2] 1968; Titusville Enterprises, Inc. v. Newkirk, Fla.App.1967, 205 So.2d 16; Atlantic Coast Line Railroad Company v. Bracewell, Fla.App.1959, 110 So.2d 482, and Hart Properties, Inc. v. Slack, Fla.App.1962, 145 So.2d 285 (reversed on different grounds, Fla.1963, 159 So.2d 236). There is a line of cases which held that amendments to the pleadings would not be permitted if they changed the legal theory upon which the action was initially based. See Warfield v. Drawdy, Fla.1949, 41 So.2d 877; McCullough v. McCullough, 1945, 156 Fla. 321, 23 So.2d 139; Gables Racing Ass’n v. Perslcy, 1939, 131 Fla. 842, 180 So. 24. These cases, however, preceded the 1954 Florida Rules of Civil Procedure and have been supplanted by those rules and the amendments thereto.
The trial court has a broad discretion in allowing such amendments under Rule 1.-190(b), and will be reversed on appeal only upon a demonstration that its action was an abuse of discretion. McSwiggan v. Edson, Fla.1966, 186 So.2d 13, 15. In the present case no showing of an abuse of discretion has been made. At the time the plaintiff requested leave to amend its complaint to conform to the evidence, the trial judge offered the appellant an opportunity for a continuance to make such further study and preparation as he might require to meet the amendment, but appellant declined to move for a continuance and indicated his readiness to proceed. We, therefore, conclude that the appellant was not disadvantaged by the trial court’s action. Compare Hart Properties, Inc. v. Slack, supra.
For the foregoing reasons, the judgment appealed from is affirmed.
Affirmed.
REED and OWEN, JJ., and McCAIN, DAVID L., Associate Judge, concur.
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The City OF Miami Beach v. Buckley, 363 So. 2d 360 (Fla. 3d DCA 1978)…within the trial court’s discretion. Dixie Farms, Inc. v. Timmons, 323 So. 2d 637 (Fla.3d DCA 1975); Trent v. Channel 10 WPLG-TV, Post-Newsweek Stations, Fla., Inc., 309 So. 2d 631 (Fla.3d DCA 1975); Strickland v. St. Petersburg Auto Auction, Inc., 243 So. 2d 603 (Fla.4th DCA 1971); Fla.R.Civ.P. 1.190(e).…
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Trent v. Channel 10, 309 So. 2d 631 (Fla. 3d DCA 1975)…and proper. Moreover, a trial judge is permitted to grant amendments in furtherance of justice within the orbit of sound discretion. E. g., McSwiggan v. Edson, Fla.1966, 186 So. 2d 13; Strickland v. St. Petersburg Auto Auction, Inc., Fla. App.1971, 243 So. 2d 603. Returning now to the merits of this case, the evidence at trial showed that Trent received $5,000 as severance pay from the defendant, and additionally $1,050 as vacation pay which he claimed. In addition, he claimed commissions for April, the mo…
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Se. Title & Ins. Co. v. Caldwell, 326 So. 2d 12 (Fla. 1975)…dments.” (p. 635) There is also authority for the proposition that under the new pleading rules amendment may be allowed even if it changed the legal theory upon which the action was initially based. Strickland v. St. Petersburg Auto Auction, Inc., 243 So. 2d 603 (Fla.App.4th, 1971). See also Raggs v. Gouse, 156 So. 2d 882 (Fla.App.2d, 1963), where plaintiff, a passenger in defendant’s car, sued defendant for personal injury, [*14] alleging simple negligence. At the close of all the evidence, and just as the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- McSWIGGAN v. Murray Edson, 186 So. 2d 13 (Fla. 1966)
- McCullough v. McCullough, 156 Fla. 321 (Fla. 1945)
- Gables Racing Assoc., Inc. v. Persky, 131 Fla. 842 (Fla. 1938)
- Hart Props., Inc. v. Slack, 145 So. 2d 285 (Fla. 3d DCA 1962)
- Warfield v. Drawdy, 41 So. 2d 877 (Fla. 1949)
- Atl. Coast Line R.R. Co. v. Bracewell, 110 So. 2d 482 (Fla. 1st DCA 1959)
- McCollough v. McCollough, 156 Fla. 326 (Fla. 1945)
- Titusville Enters., Inc. v. Newkirk, 205 So. 2d 16 (Fla. 4th DCA 1967)
- State v. City of Dunedin, 131 Fla. 857 (Fla. 1938)