Masiello v. Weeks

District Court of Appeal of Florida

Masiello v. Weeks

613 So. 2d 146, 1993 Fla. App. LEXIS 2038, 1993 WL 40391

CourtDistrict Court of Appeal of Florida

DecidedFebruary 17, 1993

DocketNo. 91-04216

StatusPublished

This text of 613 So. 2d 146 (Masiello v. Weeks) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Masiello v. Weeks, 613 So. 2d 146, 1993 Fla. App. LEXIS 2038, 1993 WL 40391 (Fla. Ct. App. 1993).

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Opinion

PER CURIAM.

The appellant, Melissa Masiello, contends that the trial court erred in denying her motion to amend her complaint to include an action on the theory expressed in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). We agree that the trial court abused its discretion. See Osborne v. Delta Maintenance & Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978); Fla.R.Civ.Pro. 1.190(a). After granting the appellee's motion to strike portions of the appellant’s second amended complaint, the trial court denied the appellant’s motion to amend and subsequently granted summary judgment for the appellees. The appellant should have been given the opportunity to attempt to state a cause of action under Eli Witt. See P.C.B. Partnership v. City of Largo, 549 So.2d 738 (Fla. 2d DCA 1989). We, accordingly, reverse the summary judgment entered against the appellant and remand for further proceedings.

Reversed and remanded.

SCHOONOVER, A.C.J., and THREADGILL and BLUE, JJ., concur.

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PER CURIAM.

The appellant, Melissa Masiello, contends that the trial court erred in denying her motion to amend her complaint to include an action on the theory expressed in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). We agree that the trial court abused its discretion. See Osborne v. Delta Maintenance & Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978); Fla.R.Civ.Pro. 1.190(a). After granting the appellee's motion to strike portions of the appellant’s second amended complaint, the trial court denied the appellant’s motion to amend and subsequently granted summary judgment for the appellees. The appellant should have been given the opportunity to attempt to state a cause of action under Eli Witt. See P.C.B. Partnership v. City of Largo, 549 So.2d 738 (Fla. 2d DCA 1989). We, accordingly, reverse the summary judgment entered against the appellant and remand for further proceedings.

Reversed and remanded.

SCHOONOVER, A.C.J., and THREADGILL and BLUE, JJ., concur.

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613 So. 2d 146, 1993 Fla. App. LEXIS 2038, 1993 WL 40391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masiello-v-weeks-fladistctapp-1993.

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