       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

       THE MARQUESA AT PEMBROKE PINES CONDOMINIUM
                    ASSOCIATION, INC.,
                         Appellant,

                                    v.

                            CHRIS POWELL,
                               Appellee.

                             No. 4D14-1348

                           [February 3, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No.
CACE1130800(21).

   Douglas H. Stein of Seipp, Flick & Hosley, LLP, Miami, for appellant.

   Jerome L. Tepps of Jerome L. Tepps, P.A., Sunrise, for appellee.

FORST, J.

   Appellant, The Marquesa at Pembroke Condominium Association,
appeals the denial of its motion to amend its complaint to add a breach of
contract cause of action and the grant of summary judgment in favor of
Appellee Chris Powell. We do not disturb the summary judgment with
respect to the sole count in the initial complaint. However, because we
agree with Appellant’s arguments challenging the denial of its motion, we
hereby reverse and remand this case to the trial court for further
proceedings.

                               Background

   Appellant filed a complaint in December 2011 seeking to foreclose on
Appellee’s condo unit for failure to pay maintenance fees and assessments.
Appellee failed to answer at this time and a default was entered against
him. In June 2012, Appellee moved to set aside the default and asserted
that Appellant’s lien had expired. By agreed order, the motion to set aside
the default was granted, and Appellee answered the complaint, asserting
the expiration of the lien as a defense.
    Appellee moved for summary judgment in August 2012 and twice set
his motion for hearing, in September and December 2013. The first
hearing was cancelled, and Appellant failed to attend the second hearing.
At the end of the following February, Appellant moved to amend its
complaint to add a new count for breach of contract, again based on the
failure to pay fees and assessments. The trial court conducted a hearing
on March 6 to address both the motion for summary judgment and the
motion to amend. The trial court issued an order granting Appellee’s
motion for summary judgment on the basis that Appellant’s lien had
expired. After the court entered a final judgment for Appellee, a motion
for rehearing was filed by Appellant, incorporating a renewed motion to
amend. This motion was also denied. None of the aforementioned orders
explicitly addressed the motion to amend.1

   Appellant asked for and received a second hearing on the motion to
amend and the motion was explicitly denied without further explanation
(as was a subsequent motion for rehearing). Appellant now appeals the
denial of its motion to amend and the granting of summary judgment in
favor of Appellee.

                                   Analysis

    Florida Rule of Civil Procedure 1.190(a) states

       A party may amend a pleading once as a matter of course at
       any time before a responsive pleading is served . . . .
       Otherwise a party may amend a pleading only by leave of court
       or by written consent of the adverse party. . . . Leave of court
       shall be given freely when justice so requires . . . .

This rule “reflect[s] a clear policy that, absent exceptional circumstances,
requests for leave to amend pleadings should be granted.” Thompson v.
Jared Kane Co., Inc., 872 So. 2d 356, 360 (Fla. 2d DCA 2004). “‘Leave to
amend should be freely given, the more so . . . when the amendment is
based on the same conduct, transaction and occurrence upon which the
original claim was brought.’” Dausman v. Hillsborough Area Reg’l Transit,
898 So. 2d 213, 215 (Fla. 2d DCA 2005) (quoting Spolski Gen. Contractor,
Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Fla., Inc., 637 So. 2d 968, 970
(Fla. 5th DCA 1994)).

1Appellant admits that this failure to address its motion to amend is an implicit
denial of the motion. See Skilled Servs. Corp. v. Reliance Ins. Co., 763 So. 2d
1092, 1094 (Fla. 4th DCA 1999).

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   “A trial court’s refusal to allow amendment . . . generally constitutes an
abuse of discretion ‘unless the privilege has been abused, there is
prejudice to the opposing party, or amendment would be futile.’” PNC
Bank, N.A. v. Progressive Emp’r Servs. II, 55 So. 3d 655, 660 (Fla. 4th DCA
2011) (quoting Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007)).
In Quality Roof Services, Inc. v. Intervest National Bank, 21 So. 3d 883 (Fla.
4th DCA 2009), this Court held that “[a] court ‘should be especially liberal
when leave to amend is sought at or before a hearing on a motion for
summary judgment.’” Id. at 885 (quoting Thompson v. Bank of N.Y., 882
So. 2d 768, 770 (Fla. 4th DCA 2003)). However, “[t]his liberality in
granting leave to amend diminishes as the case progresses to trial.” Lasar
Mfg. Co. v. Bachanov, 436 So. 2d 236, 237-38 (Fla. 3d DCA 1983).

   Appellee does not argue that the amendment would be futile. Thus, the
issues on appeal are whether the privilege to amend had been abused, and
whether the amendment would prejudice Appellee. To that end, reversal
is supported by our decision in Cousins Restaurant Associates ex rel
Cousins Management Corp. v. TGI Friday’s, Inc., 843 So. 2d 980 (Fla. 4th
DCA 2003). In Cousins, the plaintiff filed an initial complaint alleging a
variety of counts stemming from the failure of a restaurant. Id. at 981.
After the trial court granted a motion to dismiss, the plaintiff filed an
amended complaint with two new counts. Id. Pursuant to an agreed
order, the plaintiff filed a second amended complaint the following year.
Id. Two years of litigation transpired before the plaintiff moved to amend
again to add four more claims. Id. The trial court denied the motion. Id.
The defendant moved for summary judgment, which was granted. Id. at
982. This Court reversed the denial of the motion to amend, stating:

      This is not a case where the plaintiff filed repetitive motions
      for leave to amend and abused the privilege. In fact, this was
      the first request for leave to amend unrelated to a defense
      motion to dismiss. This is not a case where the court found
      that TGIF would be prejudiced by the amendment. This is not
      a case where the court reviewed the allegations and
      determined that their pursuit would be futile.

Id. In Cousins, the trial court based its denial on the fact that the plaintiff
asserted it was ready for trial prior to moving to amend. Id. We held “[t]his
is not a recognized basis for denying the motion for leave to amend.” Id.
This Court reversed the summary judgment as well, as “the plaintiff is
entitled to its day in court, given the lack of abuse and prejudice evident
on this record.” Id.


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    In contrast, we have also stated that “[a] party should not be permitted
to amend its pleadings for the sole purpose of defeating a motion for
summary judgment.” Noble v. Martin Mem’l Hosp. Ass’n, 710 So. 2d 567,
568 (Fla. 4th DCA 1997). In Noble, a plaintiff moved to file a fourth
amended complaint after litigation had been pending for five years. Id.
This fourth amended complaint apparently added a request for injunctive
relief, but this court determined that “[i]t appears that Noble only wanted
the injunctive relief if his request for monetary relief was to be denied. The
trial court properly exercised the discretion given to it in denying Noble’s
motion for leave to amend at this juncture of the litigation.” Id. at 569.

   The instant case is more aptly compared to Cousins than Noble and the
addition of a new claim for the breach of contract in this case is
distinguishable from the attempt in Noble to obtain injunctive relief.
Unlike Noble, Appellant had not amended multiple times before the
current amendment. The breach of contract claim in this case is also a
viable substantive claim that could hold a purpose other than merely
defeating summary judgment, namely obtaining monetary damages for
Appellant based on Appellee’s breach. Because this new claim has a
legitimate purpose and is a viable theory of recovery, it is not a baseless
attempt to avoid summary judgment.

   Furthermore, Appellee is unlikely to be unduly prejudiced by the
addition of this count. While the addition of the contract claim may
prevent Appellee from prevailing at summary judgment, he would still be
afforded sufficient opportunity to prepare a defense for the breach of
contract claim.

                                 Conclusion

    While the “liberality in granting leave to amend diminishes as the case
progresses to trial,” Bachanov, 436 So. 2d at 237-38, the motion in this
case came shortly before a summary judgment hearing, not trial. Appellee
is still entitled to summary judgment on the initial claim, as the initial lien
has expired and Appellant’s brief does not challenge the merits of that
decision. However, our case law favoring liberal amendments and the lack
of prejudice to Appellee dictates that Appellant should have been permitted
to add the breach of contract claim. We therefore reverse and remand for
further proceedings consistent with this opinion.

   Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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