JEAN A. INMAN, APPELLANT,
v.
THE CLUB ON SAILBOAT KEY, INC., A FLORIDA CORPORATION, AND SAILBOAT KEY, INC., A FLORIDA CORPORATION, APPELLEES
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Jean Inman appealed a summary judgment entered in favor of Sailboat Key, Inc. in her action to recover unpaid sales commissions. The court affirmed the summary judgment, finding that Inman's own pleadings and affidavit established her employment contract was with The Club On Sailboat Key, Inc., not Sailboat Key, Inc., and that she was estopped from altering her position to defeat summary judgment.
The court affirmed the summary judgment because Inman's own pleadings and affidavit established that her employment contract was with The Club On Sailboat Key, Inc., not Sailboat Key, Inc., and she was estopped from altering this position to defeat summary judgment. The court also held that the trial judge did not abuse discretion in denying the motion to amend after summary judgment had already been entered.
[1] A party opposing summary judgment cannot alter the position taken in previous pleadings, admissions, affidavits, depositions, or testimony to defeat the motion.
[2] A trial court does not abuse its discretion in denying a motion to amend a complaint to raise new issues after summary judgment has already been entered.
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Join FLexlaw to unlock all legal intelligence“A party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”
Establishes the key principle that Inman was estopped from changing her position regarding which defendant employed her after she had already established in her pleadings and affidavit that it was The Club On Sailboat Key, Inc.
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Join FLexlaw to unlock all legal intelligenceJean Inman was employed as a salesperson for condominiums known as The Club On Sailboat Key. Through her efforts, over two million dollars worth of un…
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PER CURIAM.
Plaintiff, Jean Inman, appeals a final summary judgment in favor of Sailboat Key, Inc., and an order denying her motion for rehearing and leave to file an amended complaint in an action to recover the balance of sale commissions.
Appellant filed a two-count complaint against The Club On Sailboat Key, Inc., and Sailboat Key, Inc. In count I she alleged that she had entered into an employment contract with the defendants whereby she acted as a salesperson for condominiums to be constructed and known as The Club On Sailboat Key; that through her efforts in excess of two million dollars worth of units were contracted for; as a result of her efforts, she was entitled to $21,495 in commissions and a balance of $8,799 was due and owing. In count II she alleged that she had entered into an agreement with defendant The Club On Sailboat Key, Inc. to purchase one of the units using $4,500 of her earned commissions to be placed in escrow as a down payment; defendant did not place the $4,500 in escrow and she demanded return of her deposit. Attached to the complaint was a copy of her employment contract and the deposit receipt agreement. A default judgment was entered against The Club On Sailboat Key for failure to comply with the rules of discovery. Thereafter, Inman filed a motion for entry of final judgment and attached an affidavit stating that she was employed by The Club On Sailboat Key, Inc. and the corporation owed her $8,799 in commissions. A final judgment in that amount was entered against The Club. Thereupon, Sailboat Key, Inc. moved for a final summary judgment on the ground Inman was es-topped from pursuing her claim against it by virtue of the above final judgment. After hearing, the trial judge entered final summary judgment for Sailboat Key, Inc. Inman then filed a motion for rehearing and for leave to file an amended complaint to incorporate allegations to pierce the corporate veil of both defendants, and to add the sole stockholder of both corporations as a party-defendant. The motion was denied and Inman perfected this appeal from the summary judgment and order of denial.
With respect to the entry of summary judgment for Sailboat Key, Inc., the record reflects that Inman’s employment contract was with The Club On Sailboat Key, Inc.; and in her affidavit in support of final judgment, Inman herself states that she was employed by The Club and that her contract was with this defendant. We, therefore, find no error in the entry of summary judgment for Sailboat Key, Inc. A party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So. 2d 526 (Fla.2d DCA 1970).
Appellant was attempting to raise new issues for the first time in her motion for rehearing and for leave to amend; and summary judgment already having been entered, the trial judge did not abuse his discretion in denying the proposed amendment at this stage of the proceedings. See Cohen v. Landow, 242 So. 2d 801 (Fla.3d DCA 1971).
Affirmed.
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Cited By (23 total)
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Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981)…r the now well-settled rule, which had its genesis in Ellison v. Anderson, 74 So. 2d 680 (Fla.1954), that a party is not permitted to alter a previously asserted position simply to avert summary judgment. Accord, Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Home Loan Co., Inc. of Boston v. Sloane Co. of Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970); Williams v. Duggan, 172 So. 2d 844 (Fla. 1st DCA 1965); Tri-County Produce Distributors, Inc. v. Northeast Production Credit Ass'n, 160 S…
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Willage v. The LAW Offs. OF Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982)…not, after having given an affidavit in a cause, subsequently change his testimony in order to create an [*769] issue on his opponent’s motion for summary judgment. Ellison v. Anderson, 74 So. 2d 680 (Fla.1954); Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Maryland Casualty Company v. Murphy, 342 So. 2d 1051 (Fla. 3d DCA 1977); Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970). However, a party may give a subsequent affidavit…
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James Noble, M.D. v. Martin Mem'l Hosp. Ass'n, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997)…lity “gradually diminishes as the case progresses to trial.” Versen, 347 So. 2d at 1050. A party should not be permitted to amend its pleadings for the sole purpose of defeating a motion for summary judgment. See Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3rd DCA 1977). In this case, four years and four complaints passed with no request for injunctive relief. The claim for monetary damages stood alone for over four years. This is not a case where Noble needed an opportunity to reallege a cause…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Home Loan Co. Inc. OF Boston v. The Sloane Co. OF Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970)
- Cohen v. Landow, 242 So. 2d 801 (Fla. 3d DCA 1971)