Hunter v. Montalvo

District Court of Appeal of Florida

Hunter v. Montalvo

661 So. 2d 123, 1995 Fla. App. LEXIS 10394, 1995 WL 584277

CourtDistrict Court of Appeal of Florida

DecidedOctober 5, 1995

DocketNo. 94-2497

StatusPublished

Cited by1 cases

This text of 661 So. 2d 123 (Hunter v. Montalvo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hunter v. Montalvo, 661 So. 2d 123, 1995 Fla. App. LEXIS 10394, 1995 WL 584277 (Fla. Ct. App. 1995).

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Opinion

PER CURIAM.

We have before us a final order dismissing a complaint with prejudice entered by the trial court after appellants steadfastly refused to amend their complaint, although given leave to do so on two prior occasions by the court below. Having reviewed the record of the truly unusual proceedings below, we can certainly understand the perceived frustration on the part of the trial judge. Nevertheless, while we affirm the trial court’s dismissal of the complaint, we must find that the dismissal with prejudice for failure to amend was an abuse of discretion. Sekot Lab., Inc. v. Gleason, 585 So.2d 286 (Fla. 3d DCA 1990) (on motion for rehearing). As this court has said:

[A]n order of dismissal “with leave to amend is not an order of the court to amend. It is permission to do that which without the court’s permission would not be allowable. Failure to amend after being given leave to amend is not disobedience of a court order, but is merely a continuing failure to state a cause of action.” It is, in other words, a failure to prosecute: the quintessential dismissal without prejudice.

Sekot, 585 So.2d at 289 (emphasis omitted) (citation omitted) (quoting .Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 54 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla.1982)). Thus, we affirm the dismissal but strike all portions of the order which state that the dismissal is with prejudice.

Affirmed in part and reversed in part.

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PER CURIAM.

We have before us a final order dismissing a complaint with prejudice entered by the trial court after appellants steadfastly refused to amend their complaint, although given leave to do so on two prior occasions by the court below. Having reviewed the record of the truly unusual proceedings below, we can certainly understand the perceived frustration on the part of the trial judge. Nevertheless, while we affirm the trial court’s dismissal of the complaint, we must find that the dismissal with prejudice for failure to amend was an abuse of discretion. Sekot Lab., Inc. v. Gleason, 585 So.2d 286 (Fla. 3d DCA 1990) (on motion for rehearing). As this court has said:

[A]n order of dismissal “with leave to amend is not an order of the court to amend. It is permission to do that which without the court’s permission would not be allowable. Failure to amend after being given leave to amend is not disobedience of a court order, but is merely a continuing failure to state a cause of action.” It is, in other words, a failure to prosecute: the quintessential dismissal without prejudice.

Sekot, 585 So.2d at 289 (emphasis omitted) (citation omitted) (quoting .Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 54 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla.1982)). Thus, we affirm the dismissal but strike all portions of the order which state that the dismissal is with prejudice.

Affirmed in part and reversed in part.

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661 So. 2d 123, 1995 Fla. App. LEXIS 10394, 1995 WL 584277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-montalvo-fladistctapp-1995.

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