Masiello v. Weeks

PER CURIAM. The 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. Reversed and remanded. SCHOONOVER, A.C.J., and THREADGILL and BLUE, JJ., concur.