Kennedy v. Santa Rosa Island Auth.

530 So. 2d 520, 13 Fla. L. Weekly 2096, 1988 Fla. App. LEXIS 4037, 1988 WL 92980

• Court: District Court of Appeal of Florida
• Decided: September 8, 1988
• Docket: 87-1763
• Status: Published

Opinion

530 So.2d 520 (1988)

M.G. KENNEDY, Appellant,
v.
SANTA ROSA ISLAND AUTHORITY, Appellee.

No. 87-1763.

District Court of Appeal of Florida, First District.

September 8, 1988.

Cynthia R. Fleming of Shell, Fleming, Davis & Menge, Pensacola, for appellant.

Larry A. Matthews of Beggs & Lane, Pensacola, for appellee.

SMITH, Chief Judge.

We affirm the dismissal of appellant's amended complaint as he failed to allege a cause of action based upon an unconstitutional violation of his right to equal protection under the law. Most notably, appellant failed to allege the essential element that he was similarly situated with other customers of the Authority who have been granted sewer adjustments. However, the dismissal with prejudice of appellant's first amended complaint without leave to amend was an abuse of discretion "since the complaint has been amended only once, and there has been no showing either that appellant has abused the privilege to amend or that the complaint is clearly not amendable, ..." Thompson v. McNeill Company, Inc., 464 So.2d 244 (Fla. 1st DCA 1985).

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

WENTWORTH and WIGGINTON, JJ., concur.