THOMAS P. CARLOS, AS TRUSTEE, AND LAWRENCE M. MARKS, AS TRUSTEE, APPELLANTS,
v.
CONTEXT-MARKS CORPORATION, A FLORIDA CORPORATION AND CONTEXT INDUSTRIES, INC., A FLORIDA CORPORATION, APPELLEES
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The Florida Third District Court of Appeal reversed a trial court's denial of plaintiffs' motion to amend their complaint in a foreclosure and guarantee action. The court held that the trial judge abused his discretion in denying the amendment, which sought to reorganize the claims without adding parties or new issues, especially during the pleading stage before all parties had been served.
The trial court abused its discretion in denying the motion to amend. Under Florida Rule of Civil Procedure 1.190(a), leave to amend pleadings shall be given freely when justice requires, and appellants should be allowed to file the amended complaint because it was sought during the pleading stage before all parties were served and involved the same transaction and occurrences as the original complaint.
[1] Leave to amend pleadings shall be given freely when justice so requires.
[2] A trial court abuses its discretion by denying a motion to amend a complaint when the amendment is sought during the pleading stage, based on the same transaction as the…
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Join FLexlaw to unlock all legal intelligence“leave to amend the pleadings "shall be given freely when justice so requires"”
Establishes the liberal standard under Florida Rule of Civil Procedure 1.190(a) that governs amendments to pleadings
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Join FLexlaw to unlock all legal intelligenceAppellants filed a complaint against Context-Marks Corporation and Context Industries alleging default on a note and mortgage, seeking foreclosure and…
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PER CURIAM.
This is an interlocutory appeal from an order denying appellants-plaintiffs’ motion for leave to file an amended complaint.
Appellants filed a complaint alleging, inter alia, that a note and mortgage, executed by appellee Context-Marks Corporation and guaranteed by appellee Context Industries were in default. The complaint sought, in one count, a decree of foreclosure against the former and a money judgment enforcing the guarantee for any deficiency arising out of the foreclosure against the latter. Defensive pleadings were filed including a motion to add necessary party plaintiffs. Various affirmative defenses were raised, and a counterclaim was asserted. Subsequently, the lower court granted appellees’ motion to add various parties as plaintiffs and thereafter, appellees began to effectuate service on said parties.
During the period of time in which service was being completed upon the new plaintiffs, appellants sought leave to file an amended complaint containing two counts. Count I sought foreclosure and a deficiency against the mortgagor, Context-Marks Corporation. Count II sought a money judgment against Context Industries on the guarantee. The amended complaint raised no new issues and did not seek to add any new parties. The only change found in the amended complaint, besides the change from one count to two counts, was the request that the cause of action on the guarantee be pursued before the foreclosure action on the mortgage.
Pursuant to a hearing on the matter, the chancellor denied the motion and this appeal follows.
After carefully considering the record, briefs and arguments of counsel, we are of the opinion that the chancellor abused his discretion in denying appellants’ motion to amend the complaint.
Initially, we note that leave to file the amended complaint was sought during the pleading stage and before all parties had actually been served. In addition, the amended complaint was based on the same specific transaction and occurrences between the parties as were alleged in the original complaint.
With the above in mind, and coupled with Fla.R.Civ.P. 1.190(a), which provides in part that leave to amend the pleadings “shall be given freely when justice so requires,” we are of the opinion that appellants should be allowed to file their amended complaint. See Haag v. Phillips, 333 So. 2d 507 (Fla. 2d DCA 1976); Surette v. Galiardo, 309 So. 2d 253 (Fla. 4th DCA 1975); Turner v. Trade-Mor, Inc., 252 So. 2d 383 (Fla. 4th DCA 1971); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960).
While we are not unmindful of appellees’ contention that prejudice would result from the allowance of an amended complaint, we find such contention to be without merit.
Accordingly, the order appealed from is reversed and remanded with directions to allow appellants leave to amend their complaint.
Reversed and remanded with directions.
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The Est. OF Roberta Eisen v. Philip Morris USA, Inc., 126 So. 3d 323 (Fla. 3d DCA 2013)…nd the Estate’s lawyer to file the lawsuit. ANALYSIS: We review, for an abuse of discretion, the trial court’s denial of a motion to amend to substitute parties. Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla.2005); Carlos v. Context-Marks Corp., 346 So. 2d 595 (Fla. 3d DCA 1977). We review de novo the trial court’s dismissal of the action as time barred. GLK, L.P. v. Four Seasons Hotel Ltd., 22 So. 3d 635 (Fla. 3d DCA 2009). The Estate contends that the trial court erred in failing to permit the substitu…
Authorities Cited
- Turner v. Trade-Mor, Inc., 252 So. 2d 383 (Fla. 4th DCA 1971)
- B. M. and R. L. Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960)
- Haag v. Phillips, 333 So. 2d 507 (Fla. 2d DCA 1976)
- Surette v. Galiardo, 309 So. 2d 253 (Fla. 4th DCA 1975)