Nina Solonenko v. Vogue Properties, LLC

District Court of Appeal of Florida

Nina Solonenko v. Vogue Properties, LLC

192 So. 3d 87, 2016 WL 3011793, 2016 Fla. App. LEXIS 7975

CourtDistrict Court of Appeal of Florida

DecidedMay 25, 2016

Docket4D15-2065

StatusPublished

Cited by2 cases

This text of 192 So. 3d 87 (Nina Solonenko v. Vogue Properties, LLC) 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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Nina Solonenko v. Vogue Properties, LLC, 192 So. 3d 87, 2016 WL 3011793, 2016 Fla. App. LEXIS 7975 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

Appellant challenges the trial court’s order granting appellee’s motion to dismiss the action, arguing it erred in failing to allow her to amend her complaint. We agree with appellant and reverse. “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served....” Fla. R. Civ, P. 1.190(a). A motion to dismiss is not a responsive pleading. Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005).

Appellant brought a ■ quiet title action against appellee. Appellee did not file a responsive pleading, but did file a motion to dismiss. The trial court granted the motion and dismissed the action with prejudice. Appellant moved for rehearing, arguing she had the right to amend her complaint once as a matter of right. The trial court denied her motion without allowing her, to amend the complaint.' This was error. See Thompson v. Publix Supermarkets, Inc., 615 So.2d 796, 797 (Fla. 1st DCA 1993) (holding trial court erred by failing to allow appellant to amend complaint, where such relief was sought in motion for rehearing). While appellee argues amendment of the complaint would be futile, appellant has the right to amend her complaint, even if it appears likely that the amended complaint would be meritless. See Unrue v. Wells Fargo Bank, N.A., 161 So.3d 536, 537 (Fla. 5th DCA 2014). Accordingly, we reverse.

Reversed.

STEVENSON, DAMOORGIAN and LEVINE, JJ., concur.

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PER CURIAM.

Appellant challenges the trial court’s order granting appellee’s motion to dismiss the action, arguing it erred in failing to allow her to amend her complaint. We agree with appellant and reverse. “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served....” Fla. R. Civ, P. 1.190(a). A motion to dismiss is not a responsive pleading. Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005).

Appellant brought a ■ quiet title action against appellee. Appellee did not file a responsive pleading, but did file a motion to dismiss. The trial court granted the motion and dismissed the action with prejudice. Appellant moved for rehearing, arguing she had the right to amend her complaint once as a matter of right. The trial court denied her motion without allowing her, to amend the complaint.' This was error. See Thompson v. Publix Supermarkets, Inc., 615 So.2d 796, 797 (Fla. 1st DCA 1993) (holding trial court erred by failing to allow appellant to amend complaint, where such relief was sought in motion for rehearing). While appellee argues amendment of the complaint would be futile, appellant has the right to amend her complaint, even if it appears likely that the amended complaint would be meritless. See Unrue v. Wells Fargo Bank, N.A., 161 So.3d 536, 537 (Fla. 5th DCA 2014). Accordingly, we reverse.

Reversed.

STEVENSON, DAMOORGIAN and LEVINE, JJ., concur.

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192 So. 3d 87, 2016 WL 3011793, 2016 Fla. App. LEXIS 7975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nina-solonenko-v-vogue-properties-llc-fladistctapp-2016.

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