(a) Amendments. A party may amend a 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 on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.
(b) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.
(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.
(d) Supplemental Pleadings. Upon motion of a party the court may permit that party, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.
(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 supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.
In this wrongful death case, the trial court dismissed the complaint with prejudice on the basis that the plaintiff had previously elected the State’s worker’s compensation remedy, and that this election barred the current claim. At the hearing on the motion to dismiss, the trial court did not permit the plaintiff to amend the complaint. On appeal, the defendant contended that the plaintiff lost the absolute right to amend because a motion to dismiss had been filed. The appellate court reversed, holding: “Contrary to Gaffin’s contention, it had not filed a responsive pleading; it had filed a motion to dismiss. . . . Therefore, rule 1.190(a) expressly gave [plaintiff] the absolute right to amend the complaint. . . . [A] trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once.”
Williams v. Gaffin Industrial Services, 37 Fla. L. Weekly D1261a (Fla. 2d DCA May 25, 2012)
The Fourth DCA held that the amendment should be allowed, reasoning that (1) Fla. R. Civ. Pro. 1.190(e) requires the court to allow amendments when necessary to further justice; (2) the court should be especially liberal in permitting amendments sought at or before summary judgment, citing Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003); (3) an amendment should be allowed unless there is substantial prejudice to the non-moving party, the moving party has abused its right to amend, or the amendment would be futile; and, addressing whether the proposed amendment at issue would be futile, (4) an amendment is not futile unless it fails to state a cause of action, citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).
In this declaratory judgment contract action, the defendant did not initially plead entitlement to attorneys’ fees in its answer, but was permitted leave to amend later in the case to add the request. The plaintiff appealed, and the appellate court affirmed, holding that “the trial court did not abuse its discretion by granting . . . leave to amend” because, among other reasons, the request was made prior to final judgment.
This slip and fall Plaintiff struggled with her Complaint, amending it three times after the initial filing. Nevertheless, through all of the amendments, the substantive factual allegations remained unchanged. The Third Amended Complaint was filed, however, after the statute of limitations ran on the underlying cause of action and the trial court dismissed the case with prejudice. On appeal, the Third DCA overturned the dismissal finding that the amended complaint related back to the original pleading, which was timely filed, pursuant to Rule 1.190, Fla. R. Civ. Pro. The Court reiterated that a pleading relates back if “the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.” Citing Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989).
In this pro se prisoner case, the Fourth District reversed the trial court for the “drastic and unwarranted measure” of dismissing an amended complaint with prejudice because the plaintiff did not first obtain leave to file it. The appellate court remanded for the trial court to consider the necessary factors governing amendments, including “whether such amendment would prejudice the opposing parties, whether the privilege of amendment has been abused, and whether amendment would be futile.”
The 4th DCA upheld the trial court’s decision finding that, pursuant to Rule 1.190(f), Fla. R. Civ. Pro., the Plaintiffs needed to provide at least 20 days notice of their intent to seek punitive damages. Having not provided 20 days notice, the trial court did not abuse its discretion in denying their motion.
The trial court denied leave to amend and granted summary judgment for the plaintiff. The appellate court reversed, holding that the trial court abused its discretion because “all doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”