Bank of America, N.A. v. Amy Perry, David Brand Pleat

177 So. 3d 1284

• Court: District Court of Appeal of Florida
• Decided: November 2, 2015
• Docket: 15-0393
• Status: Published

Opinion

PER CURIAM.

Bank of America, N.A. (“Appellant”) appeals an order denying its motion to file an amended complaint in a foreclosure action against Amy Perry, David Brand Pleat, et al. (“Appellees”), and raises two issues on appeal, only one of which merits discussion. Appellant argues that the trial court reversibly erred by denying its motion to file an amended complaint. We agree with Appellant and find that the trial court erred by denying the motion to file an amended complaint because the trial court’s prior non-final order that merely granted Appellees’ motion to dismiss the complaint did not preclude the filing of an amended complaint. See Paulino v. BJ’s Wholesale Club, Inc., 106 So.3d 985, 986-88 (Fla. 4th DCA 2013) (noting that the “ ‘Order on Defendant’s Motion to Dismiss Plaintiffs Complaint’ ” granted the motion to dismiss, but did not state whether the dismissal was with or without prejudice, did not grant leave to amend, and did not actually dismiss the complaint or the action; explaining that “it is well-established that an order which merely grants a motion to dismiss, as contrasted with an order dismissing a complaint or an action, is not a final order”; and concluding that “the order is merely a non-final order granting a motion to dismiss and, as such, did not serve to preclude further pursuit of the action by the filing of an amended complaint”).

Accordingly, we reverse the order denying Appellant’s motion to file an amended complaint and remand with instructions to the trial court to permit the filing of the amended complaint, including the amended certification of possession of original promissory note.

REVERSED and REMANDED with instructions.

LEWIS, MAKAR, and WINOKUR, JJ., concur.