Designers Tile Intern. Corp. v. Capitol C Corp., Nos. 85-1693
| Court | Florida District Court of Appeals |
| Writing for the Court | PER CURIAM; PER CURIAM |
| Citation | 499 So.2d 4,11 Fla. L. Weekly 2467 |
| Decision Date | 25 November 1986 |
| Docket Number | Nos. 85-1693,85-914 |
| 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. |
Page 4
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.
Third District.
On Rehearing Jan. 13, 1987.
Page 5
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.
PER CURIAM.
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) (where evidence...
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Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
...a plaintiff to amend at the close of evidence to allege a new theory of recovery." (citing Designers Tile Int'l Corp. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986))). 3. Beyond pictorial proscriptions against biting apples more than once or affording "extra innings," see, e.g., Morton......
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Goldschmidt v. Holman, No. 75172
...conflict with Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla.1985), and Designers Tile International Corp. v. Capital C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla.1987). 1 The primary issue presented in this case is whether a complaint charging malprac......
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Department of Health and Rehabilitative Services v. G & J Investments Corp., Inc., No. 87-761
...Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985); Designers Tile International Corporation v. Capitol C. Corporation, 499 So.2d 4 (Fla. 3d DCA 1987); Lasar Manufacturing Company, Inc. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983); compare the exception announced in Pan Am Toba......
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Bookworks, Inc. v. Capital C Corp., No. 87-2760
...to have made these rulings in an effort to be consistent with the decision of this court in Designers Tile Int'l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA...
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Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
...a plaintiff to amend at the close of evidence to allege a new theory of recovery." (citing Designers Tile Int'l Corp. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986))). 3. Beyond pictorial proscriptions against biting apples more than once or affording "extra innings," see, e.g., Morton......
-
Goldschmidt v. Holman, No. 75172
...conflict with Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla.1985), and Designers Tile International Corp. v. Capital C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla.1987). 1 The primary issue presented in this case is whether a complaint charging malprac......
-
Department of Health and Rehabilitative Services v. G & J Investments Corp., Inc., No. 87-761
...Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985); Designers Tile International Corporation v. Capitol C. Corporation, 499 So.2d 4 (Fla. 3d DCA 1987); Lasar Manufacturing Company, Inc. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983); compare the exception announced in Pan Am Toba......
-
Bookworks, Inc. v. Capital C Corp., No. 87-2760
...to have made these rulings in an effort to be consistent with the decision of this court in Designers Tile Int'l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA...