ABUSE OF DISCRETION TO REFUSE PLAINTIFF A CHANCE TO AMEND HIS COMPLAINT TO ADD A FRAUD CLAIM SIX WEEKS BEFORE THE SUMMARY JUDGMENT HEARING AND SIX MONTHS BEFORE TRIAL.
Fayad v. University of Miami, 45 Fla, Weekly D1762 (Fla. 3rd DCA July 22, 2020):
A physician was suing the University of Miami regarding his hospital. Six weeks before the summary judgment hearing, plaintiff retained new counsel, and a few days later, after receiving twenty-five bankers boxes of documents from the prior attorney, sought to amend the complaint to add a fraud count.
The trial court found there would be prejudice to the defendant. It noted that the matter was six years old, and adding a fraud cause to the breach of contract action on the eve of the summary judgment violated justice, even though the plaintiff had never amended his complaint before.
A trial court’s denial of a motion to amend a complaint is generally an abuse of discretion unless (1) the privilege to amend has been abused, (2) the amendment would prejudice the opposing party, or (3) the amendment would be futile.
Without a showing of such prejudice, it was error for the trial court to deny the plaintiff’s motion to amend, and error for it to enter final summary judgment.