Opinion
No. 73-444.
September 26, 1973.
Appeal from the Circuit Court for Lee County, James R. Adams, J.
Stephen E. Dalton of Pavese, Shields, Garner, Haverfield Kluttz, Fort Myers, for appellant.
William A. Keyes, Jr., of Stewart, Stewart Jackson, Fort Myers, for appellee.
Appellant/defendant files this timely interlocutory appeal from an order of the trial court denying a motion for leave to amend its answer. Appellee filed his complaint seeking a right of way across the lands of appellant pursuant to the applicable Florida Statutes.
The appellee/plaintiff has failed to demonstrate that the allowance of the requested amendment to appellant's pleading would be prejudicial or harmful to his cause of action.
Upon first reading of the pertinent pleading, we thought perhaps the issue presented was a close one. Further review thereof clearly indicates that the well-established rule of permitting and allowing liberality in pleading should be applied in this case. Rule 1.190(e), RCP, 30 F.S.A., states:
. . . At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
On authority of the Rule, supra, and the law pronounced by the Supreme Court of Florida in the case of Town of Coreytown v. State ex rel. Ervin, Fla. 1952, 60 So.2d 482, and by our sister court in Free Bond, Inc. v. Comaza International, Inc., Fla.App. 1973, 281 So.2d 61, we are of the view that the trial court erred in not allowing appellant to amend its answer.
Accordingly, the order appealed is reversed and the cause remanded for further proceedings pursuant to the Rules of Civil Procedure.
MANN, C.J., and COWART, JOE A., Jr., Associate Judge, concur.