Florida Power & Light Co. v. Crabtree Const. Co., Inc., 72--1224

• Decision Date: 12 October 1973
• Docket Number: No. 72--1224,72--1224
• Citation: 283 So.2d 570
• Court: Florida District Court of Appeals
• Parties: FLORIDA POWER & LIGHT COMPANY, Appellant, v. CRABTREE CONSTRUCTION CO., INC., a Florida corporation, and T. D. McClure, Jr., Co., Inc., a corporation, Appellees.

Page 570

283 So.2d 570

FLORIDA POWER & LIGHT COMPANY, Appellant, v. CRABTREE CONSTRUCTION CO., INC., a Florida corporation, and T. D. McClure, Jr., Co., Inc., a corporation, Appellees.

No. 72--1224.

District Court of Appeal of Florida, Fourth District.

Oct. 12, 1973.

James H. Sweeny, III, and Charles A. Citrin, of McCarthy, Steel, Hector & Davis, Miami, for appellant.

Jack Ackerman, of Johnson, Ackerman & Bakst, West Palm Beach, for appellee Crabtree Construction Co., Inc.

CROSS, Judge.

This is an appeal from a final judgment entered against a garnishee. We reverse.

The plaintiff, Crabtree Construction Co., Inc., filed suit on an alleged debt of $7,385.56 owed to the plaintiff by the defendant, T. D. McClure, Jr., Co., Inc. A writ of garnishment was issued and served on Florida Power & Light Company. The basis of the garnishment proceedings was that the plaintiff believed that the garnishee, Florida Power & Light Company, had in its possession or control goods, monies, chattels, or effects belonging to the defendant, T. D. McClure, Jr., Co., Inc.

By answer to the writ of garnishment, Florida Power & Light Company admitted that it (the garnishee) was indebted to the defendant and noted that the debt was in the nature of an unliquidated amount in excess of the amount set forth in the plaintiff's writ of garnishment. In its answer the garnishee set forth that it was reserving the right to amend its answer at such time as the garnishee was able to ascertain the exact amount of its indebtedness to the defendant.

When a default was entered against the defendant in this cause, the plaintiff filed a motion for final judgment against the garnishee. Shortly thereafter the garnishee, pursuant to the reservation contained in its initial answer, filed an amended answer denying any indebtedness to the defendant. The garnishee's amended answer alleged that subsequent to the filing of its initial answer, the defendant breached numerous construction contracts between the defendant and the garnishee and that the damages to the garnishee resulting from these contract violations exceeded the amount of money that the garnishee owed to the defendant. At a hearing held on plaintiff's motion for judgment against the garnishee, question was raised by the plaintiff as to the propriety under the 1967 Fla. RCP, as amended, of the garnishee's reservation in its original answer of the right to amend its answer and of the garnishee's filing of the amended answer pursuant to the reservation. The garnishee then moved Ore tenus for leave to file an amended answer to the writ of garnishment. This motion was denied. Final judgment was then entereed against the garnishee and defendant, T. D. McClure, Jr., Co., Inc., in the amount of $7,385.56. This appeal followed.

The garnishee's primary contention is that the trial court abused its discretion in denying the garnishee's motion Ore tenus for leave to file its amended answer. Rule 1.190, Fla. RCP (1967), 30 F.S.A. provides:

'Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party and Leave shall be given freely when justice so requires.

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