Moline v. Square Builders of Ormond Beach, Inc.

557 So. 2d 963, 1990 Fla. App. LEXIS 1622, 1990 WL 26952

• Court: District Court of Appeal of Florida
• Decided: March 15, 1990
• Docket: No. 89-635
• Status: Published

Opinion

COBB, Judge.

The issue on this appeal is whether the trial court erred in denying the motion of the defendants below (the Molines) to amend their answer by filing a compulsory counterclaim against the plaintiff (Leibel). The motion was made at a pretrial conference held on October 19,1988; at that time, the trial was scheduled for December 12, 1988, some 54 days away. The motion was denied as untimely.

The matter sought to be raised by the proposed counterclaim was an alleged misrepresentation, a matter which was first raised by the Molines as an affirmative defense in an answer filed December 31, 1987. Thus, misrepresentation had been an issue in the case for some 9x/2 months at the time of the Molines’ motion to amend. There is no showing in the record, nor is it contended, that the Molines were guilty of dilatory tactics delaying the trial.

Under the foregoing circumstances, we find that the trial court abused its discretion in disallowing the amendment to include the compulsory counterclaim. See Fla.R.Civ.P. 1.170; cf. Bratcher v. Wronkowski, 417 So.2d 1132 (Fla. 5th DCA), review denied, 424 So.2d 760 (Fla.1982).

REVERSED AND REMANDED FOR NEW TRIAL.

PETERSON and GRIFFIN, JJ., concur.