Fourth District On Motions To Amend

In Quality Roof Services, Inc. v. Intervest National Bank (4D08-3382), the Fourth District reversed the trial court's order denying a motion for leave an answer and affirmative defenses.  The court provided an analysis of the standard for amending :

A trial court’s denial of a motion to amend is reviewed for abuse of discretion...  Florida Rule of Civil Procedure 1.190(e) states that “[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading.” A court “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.”  In ruling on a motion for leave to amend, “all doubts should be resolved in favor of allowing an amendment, and the refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”...A proposed amendment is futile if it is insufficiently pled, id., or is “insufficient as a matter of law,”

Fourth District on Indemnity

In Wendt v. La Costa Beach Resort Condominium Association, Inc. (4D08-2482), the Fourth District affirmed the circuit court's order granting a motion to dismiss and certified conflict with the First District's opinion in Turkey Creek Master Owners Ass’n v. Hope, 766 So. 2d 1245
(Fla. 1st DCA 2000).

The court stated:

"The directors cannot state an action for indemnification under the circumstances of this case. “Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought.” Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979). “It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Id. at 493. “Stated differently, an indemnity right exists when one is left open to liability due to the wrongful acts of another.” Time Ins. Co. v. Neumann, 634 So. 2d 726, 729 (Fla. 4th DCA 1994). The classic example of an indemnity action is when a party held vicariously liable to a third person seeks recovery from another party whose action caused the damage. Safecare Med. Ctr. v. Howard, 670 So. 2d 1020, 1022 (Fla. 4th DCA 1996).

As to the appellant's argument that they should have been given leave to amend, the Court stated:

The directors contend that they should have been afforded an opportunity to amend their complaint to allege additional facts to support their cause of action. Because any attempt to amend the complaint to state the requisite allegations for an indemnification action would be futile, the trial court properly entered the dismissal with prejudice. See Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007) (“Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”).

Insured Not Entitled to Fees for Certiorari Petition

In Grider-Garcia v. State Farm Mutual Automobile (5D08-3793), the Petitioner sought certiorari review of an order denying leave to amend the complaint and an order denying a motion to strike discovery requests. The Fifth District denied the petition for certiorari "because any error would be fully remediable on plenary appeal."

After disposing of the issue on appeal in the first paragraph, the Fifth District then addressed whether "Petitioner is entitled to a provisional award of fees for this proceeding tied to the ultimate determination whether she is the prevailing party in the suit against her insurer pursuant to section 627.428, Florida Statutes."

"Given the courts' narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins."

Eleventh Circuit (Once Again) Finds It Proper to Review Attachments on Motion to Dismiss

In an unpublished opinion released by the Eleventh Circuit today, G&G TIC LLC v. Alabama Controls Inc. (08-15783), the court again holds that (among other things):

1.) The district courts can review attachments to a complaint when ruling on a motion to dismiss; and

2.) The district court need not grant leave to amend if an amendment would be futile.

Motion to Amend Complaint Properly Denied

Today, in Hickman v. Barclay’s International Realty, Inc. (4D07-3382), the Fourth DCA affirmed the circuit court's denial of plaintiff's Motion to Amend Pleadings. The case had been pending for over six years and the plaintiff had made five previous amendments to its complaint. At the summary judgment hearing, the plaintiff made an ore tenus motion to amend. The circuit court denied the ore tenus motion and the Fourth DCA affirmed stating:

“While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Alvarez v. DeAguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981) (citation omitted); see also Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So. 2d 892, 895 (Fla. 3d DCA 1982) (“[T]hree attempts to amend the complaint are enough.”). “In addition to the desirability of allowing amendments so that cases may be concluded on their merits, there is an
equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” 395 So. 2d at 216 (citation omitted); see also Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So. 2d 567, 568–569 (Fla. 4th DCA 1997) (“There comes a point in litigation where each party is entitled to some finality.”).

Here, the trial court properly exercised its discretion in denying the Hickmans’ motion, having determined that they had taken advantage of numerous opportunities to amend their pleadings and that the case had been pending for a long time. We affirm the trial court’s decision denying leave to amend.

Dismissal with Prejudice Proper When Amendment Would be Futile

Stander v. Dispoz-O-Products, Inc., 973 So. 2d 603 (Fla. 4th DCA 2008) is a January 2008 opinion from the Fourth District, but the point made by Judge Emas in dissent is a good one:

Stander's appeal merely seeks review of the trial court's order which found, as a matter of law, no such cause of action could be pled. Second, to the extent the issue of amendment has impliedly been raised on appeal, the transcript of the hearing on the motion to dismiss plainly reveals that seeking leave from the trial court to amend the complaint would have been a futile and useless act, given the trial court's determination that no valid cause of action could ever be pled. The law does not require a futile or useless act, see Haimovitz v. Robb, 130 Fla. 844, 178 So. 827, 830 (1937); Young v. State, 664 So.2d 1144, 1145 (Fla. 4th DCA 1995), and imposing such a requirement in this case is contrary to reason and does not advance the underlying purpose for the rule articulated in Merkle.