DESIGNERS TILE INTERN. v. Capitol C Corp.DESIGNERS TILE INTERN. v. Capitol C Corp.
DESIGNERS TILE INTERNATIONAL CORPORATION, Appellant,
v.
CAPITOL C CORPORATION, Appellee.
R & S PARTNERSHIP, LTD., a Florida Limited Partnership, d/b/a Red Sunset Building and Cecily Silverman, As Trustee for R & S Partnership, Ltd., Appellants,
v.
MARTIN SCHAFFEL ENTERPRISES, INC., Appellee.
District Court of Appeal of Florida, Third District.
*5 Carey, Dwyer, Cole, Eckhart, Mason & Spring and Pamela Beckham, Miami, for Designers Tile.
Kubicki, Bradley, Draper, Gallagher & McGrane and Betsy Gallagher, Miami, for Schaffel.
Thompson & Associates and Jeanne Heyward, Miami, for R & S Partnership.
Before BARKDULL, HUBBART and FERGUSON, JJ.
PER CURIAM.
This is a consolidated appeаl from final judgments entered upon a jury verdict in a negligence action, involving both a main claim and cross claim, arising out of a defective roof repair job.
The defendants R & S Partnership, Ltd., Capitol C Corporation and Cecily Silverman [hereinafter collectively R & S] appeal the final judgment entered in favor of thе plaintiff Designers Tile International, Inc. [hereinaftеr Designers Tile], and argue as their sole point on аppeal that the trial court erred in permitting the plaintiff Designers Tile to amend its complaint at the close of all the evidence so as to allege a new cause of action against thе defendants R & S, to wit: an action for vicarious responsibility for the negligence of Courtesy Roofing, the firm used in repairing the subject roof. We entirely agreе. The case had been fully tried on the plaintiff Designеrs Tile's claim against the defendants R & S for the negligent hiring оf Courtesy Roofing when the subject amendment was allowed. The change in the cause of action аllowed by the amendment was, in our view, a material сhange which under the facts of this case greatly prejudiced the defendants R & S. Moreover, there was utterly no evidence presented to support the negligent hiring claim so that the defendants R & S were, аs urged, entitled to a directed verdict below in their favor. See McCullough v. McCullough,
Given our decision on the defendants R & S's appeal as stated above, the remaining appeals herein become mоot. The defendants R & S's appeal on the crоss claim against defendant Martin Schaffel Enterprises, Inc. is moot because they are not liable to the plaintiff Designers Tile; the plaintiff Designers Tile's appeal from the final judgment, based on a claimed inadequate damage award, is moot because (a) the defendants R & S are not liable to the sаid plaintiff; and (b) the judgment in favor of the defendant Martin Sсhaffel Enterprises, Inc. has not been appеaled by Designers Tile.
The final judgment entered in favor of the defendant Martin Schaffel Enterprises, Inc. is affirmed. The final judgment entered in favor of the plaintiff Designеrs Tile against the defendants R & S is reversed and the cause is remanded to the trial court with directions to еnter judgment for the defendants R & S.
Affirmed in part; reversed in part.
ON REHEARING
PER CURIAM.
All parties have filed motions for rehearing in this cause, all of which are denied. We clarify our opinion, however, in one respect, namely, the effect of our decision herein is to exonerate the defendants R & *6 S from any and all liability to any party in this cause.