Wynmoor Ltd. Partnership v. Craven Thompson & Associates, Inc.

429 So. 2d 76, 1983 Fla. App. LEXIS 19441

Opinion

HERSEY, Judge.

This appeal addresses an order dismissing appellant’s second amended third party complaint with prejudice. The original cause of action was one for subrogation. Appellant was never permitted to amend to allege a right to indemnification. We are unable to conclude with conviction on this record that appellant could not state a cause of action for indemnity. Thus, it cannot be said that the third party complaint was “clearly unamendable.” Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980). The third party complaint was amended once upon appellant’s own initiative. Thus, there has been but one enforced amendment. Rule 1.190 of the Florida Rules of Civil Procedure requires that leave to amend be granted “when justice so requires.”

There having been only one enforced amendment, further amendment should have been permitted in view of our conclusion that the pleading was not clearly un-amendable.

Accordingly, we reverse and remand with instructions that, appellant be granted leave to file an amended third party complaint, and for further appropriate proceedings.

REVERSED and REMANDED with DIRECTIONS.

LETTS, C.J., and WALDEN, J., concur.