Portofino Restaurant, Inc. v. Utah State Retirement Fund

Florida District Courts of Appeal
Portofino Restaurant, Inc. v. Utah State Retirement Fund, 543 So. 2d 328 (1989)
14 Fla. L. Weekly 1141; 1989 Fla. App. LEXIS 2559; 1989 WL 47186
Barkdull, Cope, Hubbart

Portofino Restaurant, Inc. v. Utah State Retirement Fund

Opinion of the Court

PER CURIAM.

We conclude that on this record the trial court did not abuse its discretion in denying appellants’ motion for leave to amend their answer and affirmative defenses.1 Although Roberts v. Braynon, 90 So.2d 623, 627 (Fla. 1956), counsels liberality in granting leave to amend in the circumstances set forth therein, in the present case the subject matter of the proposed amendment was already embraced in appellants’ counterclaim, which remains pending, or is susceptible of being included in the pending counterclaim by amendment. As an alternative avenue of relief is available, the trial court did not abuse its discretion. We therefore affirm the summary judgment in favor of appellee but strike the execution pending adjudication of the counterclaim.

Affirmed as modified.

. We construe appellants' motion as a timely motion for rehearing pursuant to Fla.R.Civ.P. 1.530.

Reference

Full Case Name
PORTOFINO RESTAURANT, INC., and Richard Day, individually v. UTAH STATE RETIREMENT FUND
Cited By
1 case
Status
Published