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

District Court of Appeal of Florida

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

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

CourtDistrict Court of Appeal of Florida

DecidedApril 6, 1983

DocketNo. 82-534

StatusPublished

This text of 429 So. 2d 76 (Wynmoor Ltd. Partnership v. Craven Thompson & Associates, Inc.) 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.

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Wynmoor Ltd. Partnership v. Craven Thompson & Associates, Inc., 429 So. 2d 76, 1983 Fla. App. LEXIS 19441 (Fla. Ct. App. 1983).

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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 [77]*77to file an amended third party complaint, and for further appropriate proceedings.

REVERSED and REMANDED with DIRECTIONS.

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

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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 [77]*77to file an amended third party complaint, and for further appropriate proceedings.

REVERSED and REMANDED with DIRECTIONS.

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

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429 So. 2d 76, 1983 Fla. App. LEXIS 19441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynmoor-ltd-partnership-v-craven-thompson-associates-inc-fladistctapp-1983.

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