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613 So. 2d 146

Masiello v. Weeks

District Court of Appeal of Florida

Decided February 17, 1993

District Court of Appeal of Florida · decided 1993-02-17

Relies on 55 So. 2d 549 - Eli Witt Cigar & Tobacco Co. v. Matatics · Osborne v. Delta Maintenance & Welding, Inc. · 549 So. 2d 738 - PCB PARTNERSHIP v. City of Largo

Decided 1993-02-17

PER CURIAM.

¶1The appellant, Melissa Masiello, contends that the trial court erred in denying her motion to amend her complaint to include an action on the theory expressed in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951). We agree that the trial court abused its discretion. See Osborne v. Delta Maintenance & Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978); Fla.R.Civ.Pro. 1.190(a). After granting the appellee's motion to strike portions of the appellant’s second amended complaint, the trial court denied the appellant’s motion to amend and subsequently granted summary judgment for the appellees. The appellant should have been given the opportunity to attempt to state a cause of action under Eli Witt. See P.C.B. Partnership v. City of Largo, 549 So.2d 738 (Fla. 2d DCA 1989). We, accordingly, reverse the summary judgment entered against the appellant and remand for further proceedings.

¶2Reversed and remanded.

SCHOONOVER, A.C.J., and THREADGILL and BLUE, JJ., concur.
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