THE ALFI A. SHAHID AND PATRICIA ALLAN-SHAHID FAMILY TRUST, U/T/D NOVEMBER 24, 2000 vs LONNY SHANE MILLER AND JACQUELINE MILLER

• Court: District Court of Appeal of Florida
• Decided: May 12, 2023
• Docket: 22-0025
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

THE ALFI A. SHAHID AND PATRICIA ALLAN-SHAHID FAMILY TRUST, U/T/ D NOVEMBER 24, 2000,

Appellant,

Case No. 5D22-25 v. LT Case No. 2020-CC-044004

LONNY SHANE MILLER AND JACQUELINE MILLER,

Appellees. ________________________________/

Opinion filed May 12, 2023

Appeal from the County Court for Brevard County, Kelly Ingram, Judge.

Beth L. Clause, of BLC Law, Melbourne, for Appellant.

Jay R. Thakkar, of Goldman, Monaghan, Thakkar & Bettin, P.A., Cocoa, for Appellees.

PER CURIAM. AFFIRMED. See Turnberry Vill. N. Tower Condo. Ass’n v. Turnberry

Vill. S. Tower Condo. Ass’n, 224 So. 3d 266, 268 (Fla. 3d DCA 2017)

(“Because appellant did not seek leave to amend at the time of the trial

court’s dismissal with prejudice of the amended complaint, or thereafter by a

motion for rehearing, Appellant has failed to preserve the issue, precluding

our consideration of the issue for the first time on appeal.”); Stander v.

Dispoz-O-Prods., Inc., 973 So. 2d 603, 605 (Fla. 4th DCA 2008) (holding that

the plaintiff waived the right to challenge the dismissal with prejudice when,

after the trial court announced that it was dismissing with prejudice, the

plaintiff neither requested leave to amend the complaint nor moved for

rehearing to amend after the order of dismissal was entered).

EDWARDS and EISNAUGLE, JJ., concur. LAMBERT, C.J., concurs, with opinion.

2 LAMBERT, C.J., concurring. Case No. 5D22-25 LT Case No. 2020-CC-044004

The trial court in this case erroneously dismissed Appellant’s second

amended complaint with prejudice. Nevertheless, because the error was not

preserved for review, I agree with the majority that affirmance is required.

Appellant sued Appellees to evict them from a home they had leased

from Appellant. The day after suit was filed, Appellant, without leave of court

and prior to Appellees being served with process, amended its complaint, as

it was permitted to do. See Fla. R. Civ. P. 1.190(a) (providing that “[a] party

may amend a pleading once as a matter of course at any time before a

responsive pleading is served”). The amended complaint corrected a clerical

error contained in the initial complaint. Appellees answered this first

amended complaint without challenging the sufficiency of the pleading.

Appellees thereafter vacated the leased premises. Concluding that

this made its cause of action for eviction moot, Appellant moved for leave to

file a second amended complaint. Count one of the proposed second

amended complaint sought damages for breach of the lease agreement due

to Appellees’ alleged failure to pay the rent and for damage Appellees

caused to the property. Appellant pled, in the alternative, a cause of action

for unjust enrichment to recover these damages.

3 The trial court granted Appellant leave to amend. However, the order

entered also provided that “[t]his shall be the final leave granted for

[Appellant] to amend its complaint.” This provision was both inappropriate

and erroneous. At this point, Appellant had clearly not abused its privilege

to amend its complaint. Nor was there any indication that if, for some reason,

the second amended complaint being filed was insufficiently pleaded,

Appellant could not thereafter readily and easily plead a cause of action for

breach of the lease or unjust enrichment.

Appellees filed a “Motion to Dismiss/Motion to Strike/Motion for More

Definite Statement” directed to the second amended complaint. At the

hearing held on this motion, the trial court, in granting the motion, orally found

that it was “not proper to have the breach of lease and the unjust enrichment

[claims],” and that the second amended complaint was defective because it

did not contain clear and concise statements or allegations of fact. The

court’s written final order dismissed the second amended complaint with

prejudice.

The trial court’s first reason given for dismissal was erroneous. “Under

Florida law, a party may simultaneously allege the existence of an express

contract and alternatively plead a claim for unjust enrichment.” Real Est.

Value Co. v. Carnival Corp., 92 So. 3d 255, 263 n.2 (Fla. 3d DCA 2012)

4 (citing Hazen v. Cobb, 117 So. 853, 857–58 (Fla. 1928)). Here, questions

were raised as to the lease prepared without the apparent assistance of

counsel that understandably led Appellant’s counsel to plead the claims in

the alternative. Moreover, Appellees did not argue in their motion to dismiss

that Appellant erred in pleading these alternative causes of action.

As to the trial court’s second reason for dismissal, Florida Rule of Civil

Procedure 1.110(b) provides that a pleading that sets forth a claim for relief

shall contain “a short and plain statement of the ultimate facts showing that

the pleader is entitled to relief.” See also Barrett v. City of Margate, 743 So.

2d 1160, 1162 (Fla. 4th DCA 1999) (holding that “[i]t is a cardinal rule of

pleading that a complaint be stated simply, in short and plain language” and

that it “must set out the elements and the facts that support them so that the

court and the defendant can clearly determine what is being alleged” (first

citing Fla. R. Civ. P. 1.110(b); and then citing Messana v. Maule Indus., 50

So. 2d 874, 876 (Fla. 1951))).

Appellant’s second amended complaint did not comply with rule

1.110(b) and was appropriately dismissed for this reason. Appellant has not

challenged the dismissal on this ground but argues that the dismissal should

not have been with prejudice. I agree. Precedent from this court shows that,

under similar circumstances, a trial court’s dismissal with prejudice is error.

5 In Gerentine v. Coastal Security Systems, the plaintiff filed “a long, rambling

and extremely verbose second amended complaint.” 529 So. 2d 1191, 1192

(Fla. 5th DCA 1988). The trial court dismissed the second amended

complaint with prejudice. Id. We reversed, concluding:

Because the second amended complaint did not provide short and plain statements of the ultimate facts as required by the rules of pleading, the [trial] court correctly dismissed it. However, because a cause of action can be gleaned from said second amended complaint, the court should have permitted the plaintiffs another opportunity to amend it . . . .

Id. at 1194.

Here, one can readily glean from the second amended complaint that

Appellant can plead a viable cause or causes of action. The net effect of the

trial court’s erroneous dismissal with prejudice is that Appellant’s ability to

pursue its damages claim against Appellees has ended based upon only one

defectively-pled complaint.

However, “[t]he rule of preservation, which is a keystone in our

appellate process, dictates that ‘[i]n the absence of fundamental error, an

appellate court will not consider an issue that has been raised for the first

time on appeal.’” Vorbeck v. Betancourt, 107 So. 3d 1142, 1147 (Fla. 3d

DCA 2012) (quoting Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5th DCA

6 2002)). This rule applies to the improper dismissal of a complaint with

prejudice. Id. at 1148 (citing Stander, 973 So. 2d at 605).

Appellant did not move for rehearing requesting leave to amend. Nor

did it specifically make such a request prior to the dismissal with prejudice.

Accordingly, Appellant’s failure to seek amendment below precluded any

consideration of the argument being made on appeal that the trial court erred

in dismissing the second amended complaint without providing leave to

amend. See Century 21 Admiral’s Port, Inc. v. Walker, 471 So. 2d 544, 545

(Fla. 3d DCA 1985).

In closing, this case should be a reminder to all litigants and counsel

about the critical importance of timely and clearly providing notice to a trial

court by objection, motion, or otherwise of any perceived error in a trial

court’s ruling so that the court is provided the opportunity to promptly correct

the error. The failure to do so will likely have adverse consequences on

appeal.