3d DCA
Design Neuroscience Centers, P.L. v. Preston J. Fields, P.A.3d DCA4/5/23, Judge LobreeTopics: Amendment of Pleadings; Summary Judgment Standard
Fields sued for breach of a lease. He moved for summary judgment against DNC, arguing that he had uncontrovertibly established a breach of contract. DNC responded that Fields did not address the defense’s affirmative defenses or counterclaim in the summary judgment motion. In a reply to that response, Fields did attack the affirmative defenses and counterclaim. That reply was filed the Friday before a Monday summary judgment hearing. DNC moved to strike the reply as untimely because it was filed less than 20 days before the hearing and because it was addressing the affirmative defenses and counterclaim for the first time.
The trial court considered the reply and held for Fields, granting summary judgment. DNC moved for reconsideration, arguing that it was denied due process when the court considered the untimely reply. The trial court denied the argument. DNC also moved to allow it to amend the counterclaim, but the trial court denied that motion. DNC appealed.
The DCA noted that Rule 1.510 requires summary judgment motions to make particular arguments, and the rule is designed to prevent ambush against the nonmovant. Because the reply raised new matters not argued in the initial motion, DNC had insufficient notice that they would be argued at the hearing. In effect, the “reply” was a new motion for summary judgment served one business day before the hearing.
The DCA also reversed the denial of the motion to allow an amended counterclaim. The same rule applies to counterclaims as applies to amending complaints. The trial court should grant a motion to amend unless amendment would be futile, there has been abuse of the privilege to amend, or the amendment would prejudice the other party. The trial court’s order did find “prejudice,” but the DCA reversed that finding, holding that trial courts cannot find prejudice based solely on the length of time a case has been pending.
JUDGE LOGUE DISSENTED without opinion. https://supremecourt.flcourts.gov/content/download/865284/opinion/201048_DC08_04052023_ 100238_i.pdf
Terry P. Roberts Terry@YourChampions.com Director of Appellate Practice Fischer Redavid PLLCPDF Version
