Portofino Restaurant, Inc. v. Utah State Retirement Fund

543 So. 2d 328, 14 Fla. L. Weekly 1141, 1989 Fla. App. LEXIS 2559, 1989 WL 47186

Opinion

PER CURIAM.

We conclude that on this record the trial court did not abuse its discretion in denying appellants’ motion for leave to amend their answer and affirmative defenses.¹ Although Roberts v. Braynon, 90 So.2d 623, 627 (Fla.1956), counsels liberality in granting leave to amend in the circumstances set forth therein, in the present case the subject matter of the proposed amendment was already embraced in appellants’ counterclaim, which remains pending, or is susceptible of being included in the pending counterclaim by amendment. As an alternative avenue of relief is available, the trial court did not abuse its discretion. We therefore affirm the summary judgment in favor of appellee but strike the execution pending adjudication of the counterclaim.

Affirmed as modified.

Footnotes

1

. We construe appellants' motion as a timely motion for rehearing pursuant to Fla.R.Civ.P. 1.530.