Quality Roof Svc’s v. Intervest National Bank, 34 Fla. L. Wkly. D2205 (Fla. 4th DCA October 28, 2009)

In this foreclosure action, Quality Roof Services (QRS) was named as a co-defendant based on a properly recorded construction lien.  QRS timely answered the Complaint, but did not assert any affirmative defenses or raise any cross-claims. The property owner consented to the foreclosure and the case was set for a final summary judgment hearing.  Without filing any affidavits or presenting any record evidence to challenge summary judgment, QRS moved, two weeks prior to the summary judgment hearing, to amend its answer and assert an affirmative defense of unclean hands.

The Fourth DCA held that the amendment should be allowed, reasoning that (1) Fla. R. Civ. Pro. 1.190(e) requires the court to allow amendments when necessary to further justice; (2) the court should be especially liberal in permitting amendments sought at or before summary judgment, citing Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003); (3) an amendment should be allowed unless there is substantial prejudice to the non-moving party, the moving party has abused its right to amend, or the amendment would be futile; and, addressing whether the proposed amendment at issue would be futile, (4) an amendment is not futile unless it fails to state a cause of action, citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).