         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-0980
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JOHANNA BEANBLOSSOM,

    Appellant,

    v.

BAY DISTRICT SCHOOLS, BAY
COUNTY, FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

                       January 14, 2019


PER CURIAM.

    Johanna Beanblossom appeals the denial of her motion for
leave to amend her complaint. Beanblossom argues that the trial
court abused its discretion because she had never previously
sought to amend her complaint, the case was still in the
summary judgment stage, and the amendments were based upon
similar facts. We find no abuse of discretion and affirm.

                               I.

    Beanblossom filed a two-count complaint against Bay
District Schools in December 2013, alleging in Count I a whistle-
blower claim under section 112.3187, Florida Statutes, and in
Count II a negligent retention claim. The complaint alleged that
Bay District Schools did not properly investigate her complaints,
fired her for making these complaints, and failed to fire the
employee she complained about.

     Over a year later, Bay District Schools filed a motion for
summary judgment on Count I and, despite the response
Beanblossom filed on the morning of the hearing almost a year
later, the trial court granted the motion. Beanblossom does not
assert any error as to Count I in this appeal.

     Bay District Schools’ answer to Beanblossom’s complaint
alleged as to Count II that Beanblossom failed to comply with
section 768.28(6)(a), Florida Statutes, which requires notice to be
provided to the State prior to bringing an action. Over two years
later, Bay District Schools filed a motion for summary judgment
on Count II on this basis. Beanblossom responded with plainly
meritless arguments as the November 8, 2016, hearing date drew
closer until November 7, at 11:34 p.m., when she filed a motion
for leave to amend her complaint. This proposed amended
complaint would add an additional defendant and assert four
counts, including another negligence claim based on a different
factual theory and a claim asserting a First Amendment
violation. Bay District Schools objected.

    After the November 8 hearing, the trial court entered an
order granting Bay District Schools’ motion for summary
judgment as to Count II. The order also denied Beanblossom’s
motion for leave to amend the complaint, finding the following:

         Plaintiff’s motion to amend comes three years into
    this litigation, after extensive discovery, and on the eve
    of a hearing for final summary judgment. This last
    minute request appears to be an attempt to circumvent
    summary judgment and escape the effects of failing to
    comply with section 768.28 despite being aware of the
    statute and having time to cure well within the
    statutory period. Moreover, the addition of a new
    defendant and the [Federal section] 1983 claim
    introduces new issues into the litigation. . . . Under
    these circumstances, the Court finds it appropriate to
    deny Plaintiff’s motion to amend.

                                2
After the trial court denied Beanblossom’s motion for rehearing,
she filed this appeal. 1
                               II.

     “The Florida Rules of Civil Procedure encourage a policy of
liberality in allowing litigants to amend their pleadings,
especially prior to trial; this policy exists so that cases will be
tried on their merits.” Morgan v. Bank of New York Mellon, 200
So. 3d 792, 795 (Fla. 1st DCA 2016). Although permitting
pleading amendments is encouraged, when making this
determination, trial courts should consider prejudice to the
opposing party, abuse by the moving party, and whether the
proposed amendments would be futile. Id. (quoting Cedar
Mountain Estates, LLC v. Loan One, LLC, 4 So. 3d 15, 16 (Fla.
5th DCA 2009)). We review this ruling for abuse of discretion. Id.

     Taking the last of these considerations first, we note that
Beanblossom asserts that the additional claims she raised in the
proposed amended complaint are not futile. We disagree. She
asserted a new theory of negligence against Bay District Schools,
but it suffers the same notice defect as her prior claim. And her
First Amendment claim—that she was retaliated against for
speaking as a citizen when making complaints to various school
district personnel—is futile because she did not speak as a
citizen. See Slay v. Hess, 621 Fed. Appx. 573, 576 (11th Cir. 2015)
(quoting Boyce v. Andrew, 510 F. 3d 1333, 1343 (11th Cir. 2007))
(“In complaining to her superiors at work about how time was
allotted, she was speaking as an employee, and when a
government employee speaks as an employee ‘there can be no
First Amendment issue, and the constitutional inquiry ends.’”).
Because the proposed amendments would have been futile, the




    1  Beanblossom also appeals the order granting summary
judgment in favor of Bay District Schools on Count II. We find no
error in this order.



                                3
trial court did not abuse its discretion in disallowing the
amendments. 2

                               III.

     Trial courts are encouraged to allow amendments to
pleadings, but the right to amend is not unlimited. Because we
find no abuse of discretion in the trial court’s determination that
the amendments were unwarranted, we AFFIRM.

MAKAR, WINOKUR, and WINSOR, JJ., concur.


                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Cecile M. Scoon of Peters & Scoon, Panama City, for Appellant.

Heather K. Hudson and Dixon Ross McCloy, Jr., of Harrison,
Sale, and McCloy, Panama City, for Appellee.




    2 Because we find that the proposed amendments would have
been futile, we need not address whether they would have caused
prejudice to the opposing party or whether they constituted
abuse.

                                4
