DANIEL O. O'CONNELL AND FRANCES H. O'CONNELL, APPELLANTS,
v.
CITIZENS NATIONAL BANK OF HOLLYWOOD, A NATIONAL BANKING ASSOCIATION, APPELLEE
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Daniel and Frances O'Connell challenged an adverse summary judgment on a promissory note, arguing that allowing an amended complaint with a completed version of an originally incomplete note violated the principle that a plaintiff's right of action must be measured as of the time suit was filed. The court affirmed, finding the O'Connells sustained no prejudice because they would have been in no different position had the original suit been dismissed and a new action filed on the completed note.
The court affirmed the summary judgment, holding that the O'Connells sustained no harm or prejudice from allowing the amended complaint because they would have been in no different legal position had the plaintiff voluntarily dismissed the original action, completed the instrument, and filed a new separate action.
[1] A plaintiff may amend a complaint to cure a defect in an instrument attached to the original complaint, even if the defect existed at the time the suit was instituted.
[2] A party appealing an adverse judgment must demonstrate harm or prejudice resulting from the challenged ruling to warrant reversal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the plaintiff's right of action must be measured by the facts as they existed when the suit was instituted”
Establishes the core legal principle appellants argued was violated by the amended complaint
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Join FLexlaw to unlock all legal intelligenceThe O'Connells were makers of a promissory note. When the plaintiff bank filed suit on the note, the attached copy was incomplete on its face. The cou…
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Appellants, as makers of a promissory note, suffered an adverse summary judgment in an action against them on the note.
The original complaint had attached to it a copy of the note which was incomplete on its face. The court granted a motion to dismiss the original complaint on the grounds that the instrument was unenforceable under F.S. Section 673.3-115(1), F.S.A. Plaintiff filed an amended complaint alleging its authority to complete the instrument and attaching a copy of the note as completed in accordance with the alleged authority. It is on the basis of the issues made by the amended complaint that the court determined plaintiff’s entitlement to summary judgment.
Appellants’ sole point on appeal is that allowing the amended complaint to stand violates established principles of law to the effect that the plaintiff’s right of action must be measured by the facts as they existed when the suit was instituted, Voges v. Ward, 1929, 98 Fla. 304, 123 So. 785; City of Coral Gables v. Sakolsky, Fla.App.1968, 215 So.2d 329, and that where there is no valid cause of action at the time of filing suit, the defect cannot be remedied by the accrual of one while the suit is pending. Meredith v. Long, 1928, 96 Fla. 719, 119 So. 114 and Hasam Realty Corp. v. Dade County, Fla.App.1965, 178 So.2d 747.
*237It seems clear to us that appellants are in no different position than they would have been had appellee voluntarily dismissed the original action, completed the instrument in accordance with its alleged authority, and thereafter filed a new and separate action on the completed note. Thus, without deciding whether the court erred in allowing the amended complaint to stand, it seems clear that appellants sustained no harm or prejudice, nor has such action resulted in a miscarriage of justice, and hence the judgment from which the appeal is taken should be affirmed. F.S. Section 59.041, F.S.A.
Affirmed.
REED, C. J., and OWEN and MAGER, JJ., concur.
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Authorities Cited
- Voges v. Ward, 98 Fla. 304 (Fla. 1929)
- Meredith v. Long, 96 Fla. 719 (Fla. 1928)
- City OF Coral Gables v. Sakolsky, 215 So. 2d 329 (Fla. 3d DCA 1968)
- Hasam Realty Corp. v. Dade Cnty., 178 So. 2d 747 (Fla. 3d DCA 1965)