Cardona v. Benton Exp., Inc., No. 3D01-2080

• Decision Date: 26 December 2001
• Docket Number: No. 3D01-2080, No. 3D01-1767.
• Citation: 804 So.2d 505
• Parties: Augustine CARDONA, Appellant, v. BENTON EXPRESS, INC., and G & C Cartage Co., Inc., Appellees.
• Court: Florida District Court of Appeals

804 So.2d 505

Augustine CARDONA, Appellant, v. BENTON EXPRESS, INC., and G & C Cartage Co., Inc., Appellees.

Nos. 3D01-2080, 3D01-1767.

District Court of Appeal of Florida, Third District.

December 26, 2001.

Rex B. Guthrie, Miami, for appellant.

Pedisich & Llorente, and John Burke, Jr., Miami; and Richard A. Sherman, and Rosemary B. Wilder, Fort Lauderdale; and Josephs, Jack, Gaebe, Miranda & Cole, and Hugh J. Connolly, Miami, for appellees.

Before COPE, FLETCHER, and RAMIREZ, JJ.

RAMIREZ, J.

Plaintiff Augustine Cardona appeals a summary final judgment in favor of defendants Benton Express and G & C Cartage, the denial of leave to amend, and an award of attorney's fees to the defendants. The defendants cross-appeal the denial of attorney's fees against Cardona's attorney. We affirm the granting of summary judgment and the denial of leave to amend, but reverse the award of attorney's fees.

Cardona's suit arose from a shipment of ATVs lost in transit from Miami to Puerto Rico. Cardona initially filed a claim of loss with Caribe Freight of Puerto Rico, the freight forwarder. He then brought a strict liability cause of action against Benton Express and G & C Cartage, the carriers, under the Carmack Amendment, 49 U.S.C. 14706(a)(1).

Approximately one month after the suit was filed, Caribe Freight paid Cardona's claim with funds provided by its insurer, Fireman's Fund. Plaintiffs counsel argued before the trial court and on appeal that, even after Cardona received payment, the cause of action remained the same and that the only change necessary was a substitution of the named plaintiff. He now argues that Cardona's claim was actually a subrogation claim and that the parties had proceeded under that assumption. However, the complaint did not allege that Cardona was bringing suit on behalf of either Fireman's Fund or Caribe Freight.

The defendants, on the other hand, argue that the cause of action under the Carmack Amendment changed from a strict liability claim by Cardona to an indemnification claim by Caribe Freight. See 49 U.S.C. 14706(b) (the freight forwarder is entitled to recover from the carrier over whose line or route the loss occurred the amount required to be paid to the owner of the property). They contend that, at the point when Cardona's claim was paid by Fireman's Fund through Caribe Freight, the complaint required amendment to change the cause of action and reflect that Cardona was acting as a subrogor for the insurer, or to reflect the proper plaintiff and cause of action under the Carmack Amendment. The complaint was not amended, nor was leave to amend sought until five days after summary judgment was granted in favor of the defendants. The complaint was brought as a strict liability action on behalf of Cardona individually, with no allegations pertaining to a subrogation claim. Thus, at the time the motion for summary judgment was heard, the trial court had no alternative but to grant summary judgment because the only plaintiff before it, having already been made whole, had no damages and therefore no cause of action. See Dollar Systems, Inc. v. Detto, 688 So.2d 470 (Fla. 3d DCA 1997)

(granting summary judgment where there was no evidence that the plaintiff had incurred damages and the complaint did not show that the plaintiff was proceeding in a representative capacity).

A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment. Hart Properties, Inc. v. Slack, 159 So.2d 236, 240 (Fla.1963); Plyser v. Hados, 388 So.2d 1284, 1285 (Fla. 3d DCA 1980); Dubus v. McArthur, 682 So.2d 1246, 1247 (Fla. 1st DCA 1996). We have stated, however, that it is an abuse of discretion to...