Designers Tile Intern. Corp. v. Capitol C Corp., s. 85-1693
| Decision Date | 25 November 1986 |
| Docket Number | Nos. 85-1693,85-914,s. 85-1693 |
| Citation | 499 So.2d 4,11 Fla. L. Weekly 2467 |
| Parties | 11 Fla. L. Weekly 2467, 12 Fla. L. Weekly 261 DESIGNERS TILE INTERNATIONAL CORPORATION, Appellant, v. CAPITOL C CORPORATION, Appellee. R & S PARTNERSHIP, LTD., a Florida limited partnership, d/b/a Red Sunset Building and Cecily Silverman, as trustee for R & S Partnership, Ltd., Appellants, v. MARTIN SCHAFFEL ENTERPRISES, INC., Appellee. |
| Court | Florida District Court of Appeals |
Carey, Dwyer, Cole, Eckhart, Mason & Spring and Pamela Beckham, Miami, for Designers Tile.
Kubicki, Bradley, Draper, Gallagher & McGrane and Betsy Gallagher, Miami, for Schaffel.
Thompson & Associates and Jeanne Heyward, Miami, for R & S Partnership.
Before BARKDULL, HUBBART and FERGUSON, JJ.
This is a consolidated appeal from final judgments entered upon a jury verdict in a negligence action, involving both a main claim and cross claim, arising out of a defective roof repair job.
The defendants R & S Partnership, Ltd., Capitol C Corporation and Cecily Silverman [hereinafter collectively R & S] appeal the final judgment entered in favor of the plaintiff Designers Tile International, Inc. [hereinafter Designers Tile], and argue as their sole point on appeal that the trial court erred in permitting the plaintiff Designers Tile to amend its complaint at the close of all the evidence so as to allege a new cause of action against the defendants R & S, to wit: an action for vicarious responsibility for the negligence of Courtesy Roofing, the firm used in repairing the subject roof. We entirely agree. The case had been fully tried on the plaintiff Designers Tile's claim against the defendants R & S for the negligent hiring of Courtesy Roofing when the subject amendment was allowed. The change in the cause of action allowed by the amendment was, in our view, a material change which under the facts of this case greatly prejudiced the defendants R & S. Moreover, there was utterly no evidence presented to support the negligent hiring claim so that the defendants R & S were, as urged, entitled to a directed verdict below in their favor. See McCullough v. McCullough, 156 Fla. 321, 23 So.2d 139, 140 (1945); Dean Co. v. U.S. Home Corp., 485 So.2d 438, 439-40 (Fla. 2d DCA 1986); Tucker v. Daugherty, 122 So.2d 230, 232 (Fla. 2d DCA), cert. denied, 125 So.2d 878 (Fla.1960); see also Swilley v. Economy Cab Co. of Jacksonville, 56 So.2d 914 (Fla.1951) (); Smith's Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961) (same).
Given our decision on the defendants R & S's appeal as stated above, the...
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