Designers Tile Intern. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1987). · Go Syfert
Search
Designers Tile Intern. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1987). Cases Citing This Book View Copy Cite
“the defendant r s's appeal on the crossclaim against defendant martin schaffel enterprises, inc., is moot because they are not liable to plaintiff designers tile... .”
26 citation events (8 in the last 25 years) across 2 distinct courts.
Strongest positive: R & S Partnership v. Martin Schaffel Enterprises, Inc. (fladistctapp, 1988-08-09)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 9 distinct citers.
discussed Cited as authority (verbatim quote) R & S Partnership v. Martin Schaffel Enterprises, Inc.
Fla. Dist. Ct. App. · 1988 · quote attribution · 1 verbatim quote · confidence high
the defendant r s's appeal on the crossclaim against defendant martin schaffel enterprises, inc., is moot because they are not liable to plaintiff designers tile... .
discussed Cited as authority (rule) Schopler v. Smilovits
Fla. Dist. Ct. App. · 1997 · confidence medium
See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988) ("Had [the opponent] waited to object until the presentation of evidence and then moved for a directed verdict, [claimant] would not have been entitled to amend its pleadings and start the case anew."); and Designers Tile International Corp. v. Capitol C Corp., 499 So.2d 4, 5 (Fla. 3d DCA 1986), rev. denied, 508 So.2d 13 (Fla.1987) ("The change in the cause of action allowed by the amendment was, in our view, a material change which under the facts of this case greatly preju…
cited Cited as authority (rule) Goldschmidt v. Holman
Fla. · 1990 · confidence medium
See Tamiami, 463 So.2d at 1128 ; Designers Tile, 499 So.2d at 5 (concluding that a separate cause of action for vicarious liability must be pled).
discussed Cited "see" Building B1, LLC v. Component Repair Services, Inc.
Fla. Dist. Ct. App. · 2017 · signal: see · confidence high
See Designers Tile Int’l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986); Santi v. Zack Co., 287 So.2d 127 (Fla. 3d DCA 1973). *790 Finally, Building Bl asserts that the trial court erred in finding in favor of CRS on its counterclaim and in finding Building Bl liable on an unpled theory of a breach of an oral agreement.
discussed Cited "see" Simon, Pipes & Ross, Inc. v. Cuartas (2×)
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Designers Tile Int'l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla.1987); see also Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987) (trial court should not allow amendment over objection).
cited Cited "see, e.g." Universal Insurance Company of North America v. Sunset 102 Office Park Condominium Association, Inc.
Fla. Dist. Ct. App. · 2023 · signal: see also · confidence low
See also Designers Tile Int'l Corp. v. Capitol C Corp., 499 So. 2d 4 (Fla. 3d DCA 1986); Santi v. Zack Co., 287 So. 2d 127 (Fla. 3d DCA 1973).1 2.
discussed Cited "see, e.g." MARLYN TRACEY v. WELLS FARGO BANK N. A.
Fla. Dist. Ct. App. · 2019 · signal: see also · confidence low
See, e.g., Palm v. Taylor, 929 So. 2d 566, 568 (Fla. 2d DCA 2006) ("Amending a complaint during trial to assert a new cause of action generally should not be permitted over objection."); Freshwater v. Vetter, 511 So. 2d 1114, 1115 (Fla. 2d DCA 1987) ("[A]mending [to conform to the evidence] to state a new cause of action should not be allowed over objection." (citing Triax, Inc. v. City of Treasure Island, 208 So. 2d 669 (Fla. 2d DCA 1968); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960))); see also Simon, Pipes & Ross, Inc. v. Cuartas, 834 So. 2d 870, 872 (Fla. 3d DCA 2002) ("Where an …
discussed Cited "see, e.g." MARLYN TRACEY v. WELLS FARGO BANK N. A.
Fla. Dist. Ct. App. · 2018 · signal: see also · confidence low
See, e.g., Palm v. Taylor, 929 So. 2d 566, 568 (Fla. 2d DCA 2006) ("Amending a complaint during trial to assert a new cause of action generally should not be permitted over objection."); Freshwater v. Vetter, 511 So. 2d 1114, 1115 (Fla. 2d DCA 1987) ("[A]mending [to conform to the evidence] to state a new cause of action should not be allowed over objection." (first citing Triax, Inc. v. City of Treasure Island, 208 So. 2d 669 (Fla. 2d DCA 1968) and then citing Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960))); see also Simon, Pipes & Ross, Inc. v. Cuartas, 834 So. 2d 870, 872 (Fla. 3d …
discussed Cited "see, e.g." Booth v. Abbey Road Beef & Booze, Inc.
Fla. Dist. Ct. App. · 1988 · signal: see also · confidence low
See also Designers Tile International *1290 Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), rev. denied, 508 So.2d 13 (Fla. 1987); Collins v. School Board of Broward County, 471 So.2d 560 (Fla. 4th DCA 1985).
DESIGNERS TILE INTERNATIONAL CORPORATION, Appellant,
v.
CAPITOL C CORPORATION, Appellee. R & S PARTNERSHIP, LTD., a Florida Limited Partnership, d/b/a Red Sunset Building and Cecily Silverman, As Trustee for R & S Partnership, Ltd., Appellants, v. MARTIN SCHAFFEL ENTERPRISES, INC., Appellee.
85-1693, 85-914.
District Court of Appeal of Florida, Third District.
Jan 13, 1987.
499 So. 2d 4
Barkdull, Hubbart and Ferguson.
Cited by 2 opinions  |  Published

[*5] Carey, Dwyer, Cole, Eckhart, Mason & Spring and Pamela Beckham, Miami, for Designers Tile.

Kubicki, Bradley, Draper, Gallagher & McGrane and Betsy Gallagher, Miami, for Schaffel.

Thompson & Associates and Jeanne Heyward, Miami, for R & S Partnership.

Before BARKDULL, HUBBART and FERGUSON, JJ.

PER CURIAM.

This is a consolidated appeal from final judgments entered upon a jury verdict in a negligence action, involving both a main claim and cross claim, arising out of a defective roof repair job.

The defendants R & S Partnership, Ltd., Capitol C Corporation and Cecily Silverman [hereinafter collectively R & S] appeal the final judgment entered in favor of the plaintiff Designers Tile International, Inc. [hereinafter Designers Tile], and argue as their sole point on appeal that the trial court erred in permitting the plaintiff Designers Tile to amend its complaint at the close of all the evidence so as to allege a new cause of action against the defendants R & S, to wit: an action for vicarious responsibility for the negligence of Courtesy Roofing, the firm used in repairing the subject roof. We entirely agree. The case had been fully tried on the plaintiff Designers Tile's claim against the defendants R & S for the negligent hiring of Courtesy Roofing when the subject amendment was allowed. The change in the cause of action allowed by the amendment was, in our view, a material change which under the facts of this case greatly prejudiced the defendants R & S. Moreover, there was utterly no evidence presented to support the negligent hiring claim so that the defendants R & S were, as urged, entitled to a directed verdict below in their favor. See McCullough v. McCullough, 156 Fla. 321, 23 So.2d 139, 140 (1945); Dean Co. v. U.S. Home Corp., 485 So.2d 438, 439-40 (Fla. 2d DCA 1986); Tucker v. Daugherty, 122 So.2d 230, 232 (Fla. 2d DCA), cert. denied, 125 So.2d 878 (Fla. 1960); see also Swilley v. Economy Cab Co. of Jacksonville, 56 So.2d 914 (Fla. 1951) (where evidence does not support cause of action pled, directed verdict required); Smith's Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961) (same).

Given our decision on the defendants R & S's appeal as stated above, the remaining appeals herein become moot. The defendants R & S's appeal on the cross claim against defendant Martin Schaffel Enterprises, Inc. is moot because they are not liable to the plaintiff Designers Tile; the plaintiff Designers Tile's appeal from the final judgment, based on a claimed inadequate damage award, is moot because (a) the defendants R & S are not liable to the said plaintiff; and (b) the judgment in favor of the defendant Martin Schaffel Enterprises, Inc. has not been appealed by Designers Tile.

The final judgment entered in favor of the defendant Martin Schaffel Enterprises, Inc. is affirmed. The final judgment entered in favor of the plaintiff Designers Tile against the defendants R & S is reversed and the cause is remanded to the trial court with directions to enter judgment for the defendants R & S.

Affirmed in part; reversed in part.

ON REHEARING

PER CURIAM.

All parties have filed motions for rehearing in this cause, all of which are denied. We clarify our opinion, however, in one respect, namely, the effect of our decision herein is to exonerate the defendants R &[*6] S from any and all liability to any party in this cause.