Opinion
No. 74-1633.
May 9, 1975.
Petition for review from the Circuit Court for Brevard County, Tom Waddell, Jr., J.
Charles H. Rubenstein, Cohen Cohen, Miami Beach, for petitioners.
Richard E. Trapp and Jon E. Johnson, Sands, Smalbein, Eubank, Johnson, Rosier Bussey, Cocoa, for respondents.
This is a petition for certiorari to review a trial court order denying plaintiffs' motion for leave to amend the pleadings. We grant certiorari, quash the order, and remand with instructions to permit the amendment.
The record reveals that counsel inadvertently omitted certain claims for damages from the complaint. These claims had been included in a prior complaint and investigated by the defendants and, hence, there was no surprise or prejudice. The omission was discovered at pretrial conference and the motion to amend then made and denied.
It is our judgment that the denial represented an abuse of discretion which can not be fully corrected by plenary appeal. We reverse upon authority of Surette v. Galiardo, 309 So.2d 253 (4th DCA Fla. 1975). See also Rule 1.190(e), F.R.C.P., which provides the tone and criteria to be employed in the consideration of amendments.
We grant certiorari; quash the order denying plaintiffs' motion to amend the complaint and remand for further proceedings consistent herewith.
Certiorari granted, with directions.
DOWNEY and MAGER, JJ., concur.