Florida Air Conditioners, Inc. v. Colonial Supply Co.

• Decision Date: 19 November 1980
• Docket Number: No. 80-279,80-279
• Citation: 390 So.2d 174
• Parties: FLORIDA AIR CONDITIONERS, INC., a Florida Corporation, Appellant, v. COLONIAL SUPPLY COMPANY, a Florida Corporation; Charles Buchanan and William F.Howard, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 174

390 So.2d 174

FLORIDA AIR CONDITIONERS, INC., a Florida Corporation, Appellant, v. COLONIAL SUPPLY COMPANY, a Florida Corporation; Charles Buchanan and William F.Howard, jointly and severally, Appellees.

No. 80-279.

District Court of Appeal of Florida, Fifth District.

Nov. 19, 1980.

James A. Sisserson, of Nance, Cacciatore & Sisserson, Melbourne, for appellant.

Frank R. Pound of Lovering, Pound & Lober, P.A., Cocoa, for appellees.

COWART, Judge.

In an action for debt appellants sued the corporate defendant-appellee Colonial Supply Company in three counts and in Count 4 sued the individual defendants-appellees Buchanan and Howard, essentially alleging that the individuals were liable as partners or proprietors of a business known as Colonial Supply Company and also that they had acted as a corporation without authority and were personally liable under Section 607.397, Florida Statutes (1975). Buchanan and Howard moved to dismiss Count 4 on the ground that the cause of action alleged accrued prior to effective date of Section 607.397, Florida Statutes (1975). That motion was denied. The counts against the corporate defendant were severed and the case was tried to a jury on Count 4. During trial the plaintiff struck its allegations that the appellees were liable as partners or owners and the case was submitted to the jury solely on the theory of individual liability under the statute. The jury found for the plaintiffs on that theory. Buchanan and Howard appealed and that judgment was reversed because the motion to dismiss should have been granted on the ground urged and the case was remanded "for further proceedings consistent herewith." Buchanan v. Florida Air Conditioners, Inc., 374 So.2d 1017 (Fla. 4th DCA 1979). Upon remand plaintiff moved to amend its complaint to re-allege its original claim that Buchanan and Howard were liable in debt as partners or proprietors of the business incurring the debt. From the denial of the motion to amend this appeal was taken.

The question presented is the right of a litigant to amend pleadings after an appeal.

Appellant refers to Rule 1.190(e), Florida Rules of Civil Procedure, which provides in part as follows:

(e) Amendments Generally. At any time in the 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.

and to the policy of the law to allow litigants to amend pleadings freely that causes may be tried on their merits. Turner v. Trade-Mor, Inc., 252 So.2d 353 (Fla. 4th DCA 1971).

Appellees cite Airvac Inc. v. Ranger Ins. Co., 330 So.2d 467 (Fla.1976), and Palm Beach Estates v. Croker, 143 So. 792 (Fla.1932), for the proposition that after an appeal the trial court cannot permit amendments to assert new theories of recovery or defenses inconsistent with the appealed record which has become the law of the case.

In Airvac, Ranger Ins. Co. had, before the first appeal, moved to amend its pleadings to assert a fraudulent conveyance defense. That motion had been denied and the denial had not been cross-assigned as error on an appeal taken by Airvac from a directed verdict. After reversal and remand Ranger again sought to amend to allege the fraudulent conveyance defense. On certiorari the Florida Supreme Court held that Ranger had a full opportunity to have had the denial of its first motion reviewed on the initial appeal and having failed to do so the state of the record and the points of law decided on the first appeal became the law of the case and upon remand the once rejected defense could not then be permitted by amendment.

In Airvac the party seeking to amend after appeal had before the initial appeal suffered an adverse trial ruling on the very point presented to the trial court after appeal (being the right to amend to add a defense) and that legal point was held to have been settled by the first appeal. In this case appellant never sought to amend before the first appeal and in fact won a verdict before the jury.

In Croker, on an interlocutory appeal in equity, an appellate court upheld the sufficiency of an answer and counterclaim. On remand the complainant sought to further amend the complaint. Upon a second appeal it was held that the defendant could not be deprived of the benefit of the first appellate ruling by permitting the complainant to file amendments inconsistent with the state of the record upon which the first appeal was decided and which would have indirectly defeated or circumvented the effect of the appellate decision upholding the sufficiency of the defense in the answer. In Croker, at page 794, the court said:

(A)n amended bill of complaint which is in effect the institution of a new and materially different suit alleging a different cause of action, which is wholly inconsistent with, and repugnant to, the allegation of the original bill and attempts to assert an entirely different and inconsistent right in the complainant has been held by this court to be improper ....

Croker involved a party who first lost an appeal involving the sufficiency of an opponent's pleading then attempted by later amendment to circumvent the effect of the appellate ruling while in this case the plaintiff sought to amend only after an appellate court found error with the trial court's pre-trial order upholding...