Designers Tile Intern. Corp. v. Capitol C Corp., Nos. 85-1693

CourtFlorida District Court of Appeals
Writing for the CourtPER CURIAM; PER CURIAM
Citation499 So.2d 4,11 Fla. L. Weekly 2467
Decision Date25 November 1986
Docket NumberNos. 85-1693,85-914
Parties11 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

499 So.2d 4
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.
Nos. 85-1693, 85-914.
District Court of Appeal of Florida,
Third District.
Nov. 25, 1986.
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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5 practice notes
  • Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
    • United States
    • Florida District Court of Appeals
    • March 23, 2018
    ...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
    • United States
    • United States State Supreme Court of Florida
    • November 29, 1990
    ...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
    • United States
    • Florida District Court of Appeals
    • November 15, 1988
    ...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
    • United States
    • Florida District Court of Appeals
    • August 16, 1988
    ...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...
  • Request a trial to view additional results
5 cases
  • Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
    • United States
    • Florida District Court of Appeals
    • March 23, 2018
    ...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
    • United States
    • United States State Supreme Court of Florida
    • November 29, 1990
    ...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
    • United States
    • Florida District Court of Appeals
    • November 15, 1988
    ...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
    • United States
    • Florida District Court of Appeals
    • August 16, 1988
    ...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...
  • Request a trial to view additional results

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