Posey v. Magill

District Court of Appeal of Florida

Posey v. Magill

530 So. 2d 985, 13 Fla. L. Weekly 1955, 1988 Fla. App. LEXIS 3990, 1988 WL 86336

District Court of Appeal of Florida·Decided August 22, 1988·No. No. 87-851·Published·Cited by 2 cases

Opinion

THOMPSON, Judge.

Bobby G. Posey, the plaintiff below, appeals a final order dismissing his complaint [986]*986against appellee and denying him leave to file an amended complaint. We reverse.

Pursuant to Fla.R.Civ.P. 1.190, a party may amend his pleading one time “as a matter of course before a responsive pleading is served.” When Posey’s initial complaint was dismissed he tendered an amended complaint and requested permission to amend, which was denied. The tendered amended complaint states causes of action for malicious prosecution, abuse of process and civil perjury. Unless it is clear from the face of a complaint that amendment would be futile, failure to grant a plaintiff at least one opportunity to amend his complaint constitutes an abuse of discretion. Ayers v. Home Owners Association of Killeam Estates, 360 So.2d 1326 (Fla. 1st DCA 1978). Accordingly, the denial of leave to amend is reversed and the cause is remanded to the trial court with instructions that Posey be afforded an opportunity to amend his initial complaint as mandated by Fla.R.Civ.P. 1.190.

SHIVERS and ZEHMER, JJ., concur.

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THOMPSON, Judge.

Bobby G. Posey, the plaintiff below, appeals a final order dismissing his complaint [986]*986against appellee and denying him leave to file an amended complaint. We reverse.

Pursuant to Fla.R.Civ.P. 1.190, a party may amend his pleading one time “as a matter of course before a responsive pleading is served.” When Posey’s initial complaint was dismissed he tendered an amended complaint and requested permission to amend, which was denied. The tendered amended complaint states causes of action for malicious prosecution, abuse of process and civil perjury. Unless it is clear from the face of a complaint that amendment would be futile, failure to grant a plaintiff at least one opportunity to amend his complaint constitutes an abuse of discretion. Ayers v. Home Owners Association of Killeam Estates, 360 So.2d 1326 (Fla. 1st DCA 1978). Accordingly, the denial of leave to amend is reversed and the cause is remanded to the trial court with instructions that Posey be afforded an opportunity to amend his initial complaint as mandated by Fla.R.Civ.P. 1.190.

SHIVERS and ZEHMER, JJ., concur.

Posey v. Magill, 530 So. 2d 985, 13 Fla. L. Weekly 1955, 1988 Fla. App. LEXIS 3990, 1988 WL 86336 (Fla. Ct. App. 1988).

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Opinion

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