Summary
denying motion to amend made on the eve of trial where plaintiff, in the exercise of due diligence, should have been aware of alleged basis for proposed fraud count long before he sought to amend his complaint
Summary of this case from Newman v. State Farm Auto. Ins. Co.Opinion
No. 86-2274.
June 9, 1987.
Appeal from the Circuit Court, Dade County, Jack M. Turner and Richard S. Fuller, JJ.
Michael Lechtman, North Miami Beach, for appellant.
Quinton, Lummuss, Dunwody Adams and Albert Edward Quinton, Miami, for appellee.
Before HUBBART, DANIEL S. PEARSON, and JORGENSON, JJ.
The plaintiff Angel San Martin appeals from a final order denying his motion to amend his complaint to add a fraud count against the defendant Dadeland Dodge, Inc. The denial of amendment occurred after the trial court had previously entered orders dismissing certain counts of the complaint and entering summary judgment in favor of the defendant Dadeland Dodge, Inc. on the remaining counts of the complaint, and with the cause set for trial against a codefendant also sued in the complaint. We affirm the order appealed from because (a) the proposed fraud count was materially different from the other counts of the complaint; (b) the amendment proposal was made on the eve of the trial, after the defendant Dadeland Dodge, Inc. had been dismissed from the case; (c) the plaintiff, in the exercise of due diligence, should have been aware of the alleged basis for the proposed fraud count long before he sought to amend his complaint; and, accordingly, (d) no abuse of discretion is shown in denying the motion to amend under the circumstances of the case. See Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 237-38 (Fla. 3d DCA 1983); Ruden v. Medalie, 294 So.2d 403, 406-07 (Fla. 3d DCA 1974); Brown v. Montgomery Ward Co., 252 So.2d 817, 818, 819 (Fla. 1st DCA 1971).
The final order denying the motion to amend the complaint is, therefore, in all respects
Affirmed.