CHARLES H. KULP, PETITIONER,
v.
GENERAL SHEET METAL & ROOFING, INC., MURIEL KEEN AND MURIEL KEEN, AS EXECUTRIX OF THE ESTATE OF JOHN PAUL KEEN, JR., DECEASED, RESPONDENTS
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Kulp, a defendant, appealed from trial court orders striking portions of an amended complaint and changing a dismissal from 'with prejudice' to 'without prejudice' after the plaintiff filed an amended complaint late. The court held that the trial court did not abuse its discretion because the dismissal order was interlocutory and non-final, preserving the court's jurisdiction to entertain the late amendment.
The trial court acted within its authority because the August 3rd dismissal order was interlocutory and non-final, which meant the trial court retained jurisdiction and discretion to entertain the late amendment. The modification of the dismissal from 'with prejudice' to 'without prejudice' was proper because no final order had been entered, and the amended order merely reflected the intended nature of the original order.
[1] An interlocutory order of dismissal that grants leave to amend does not divest the trial court of jurisdiction.
[2] A trial court retains discretion to entertain a belatedly filed amended pleading when the prior order of dismissal was not final.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The order of August 3, 1977, which dismissed the cause but granted leave to amend, was nothing more than an interlocutory order that did not divest the trial court of its jurisdiction.”
Establishes the foundational principle that dismissal orders containing leave to amend are interlocutory and preserve trial court jurisdiction.
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Join FLexlaw to unlock all legal intelligenceOn August 3, 1979, the trial court dismissed the second amended complaint filed by General Sheet Metal & Roofing, Inc., and granted leave to file a th…
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[*1292] BASKIN, Judge.
Charles Kulp, one of the defendants below, appeals from two orders, one striking portions of the third amended complaint filed by General Sheet Metal & Roofing, Inc., the other changing a prior order of dismissal with prejudice to a dismissal without prejudice. Pursuant to Rule 9.040(c), Florida Rules of Appellate Procedure, we treat these consolidated appeals as petitions for writs of certiorari. Because we hold that the trial court acted in accordance with the essential requirements of the law, we decline to issue the writs.
On August 3,1979, the trial court entered an order dismissing the second amended complaint filed by General Sheet Metal. The order of dismissal granted leave to file a third amended complaint in twenty days; if no amended pleading was filed within the allotted time, the action would stand dismissed with prejudice.
An amended complaint was filed, but not until September 11,1979, several days after the twenty days had elapsed. Kulp responded with a motion to strike the third amended complaint on the ground that the action had already been dismissed with prejudice. The trial court, however, entered an order striking only portions of the third amended complaint. Sometime later, the trial court entered the second order appealed. That order modified the August 3rd order of dismissal to reflect that the dismissal was without prejudice.
The order of August 3, 1977, which dismissed the cause but granted leave to amend, was nothing more than an interlocutory order that did not divest the trial court of its jurisdiction. Hancock v. Piper, 186 So. 2d 489 (Fla.1966); Epley v. Washington County, 358 So. 2d 592 (Fla. 1st DCA 1978); Brandal v. State Farm Mutual Automobile Insurance Co., 310 So. 2d 780 (Fla. 1st DCA 1975). Because the order of dismissal was not final, the trial court maintained discretion to entertain the belatedly filed third amended complaint. The record discloses no error in the trial court’s decision to strike only a portion of the third amended complaint.
Upon Kulp’s motion for rehearing of his motion to strike, the trial court entered an order changing the dismissal with prejudice to a dismissal without prejudice. Kulp contends that this action by the trial court was error because the modification was not made within the ten day post-judgment period for motions, nor'was it made in accordance with Rule 1.540, Florida Rules of Civil Procedure, which permits the trial court to correct clerical mistakes or other errors arising from oversight or omission. Neither argument has any merit because a final order or judgment had not been entered. The amended order of dismissal merely reflects the intended nature of the order of August 3, 1977, and is itself non-final.
For these reasons, the petitions for writs of certiorari are denied.
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Mejia v. Egleston (Fla. 3d DCA 2021)…sses a complaint for failure to state a cause of action, but which grants leave to amend, is interlocutory and not a final, appealable order); Levine v. Forrest, 578 So. 2d 458 (Fla. 3d DCA 1991); Kulp v. Gen. Sheet Metal & Roofing, 3 Inc., 386 So. 2d 1291 (Fla. 3d DCA 1980). Following remand, Mejia again chose not to amend his second amended complaint, instead moving for entry of a final order of dismissal with prejudice.1 The trial court granted the motion, entered final judgment for Egleston,…
Authorities Cited
- Hancock v. Wilford J. Piper and Alida Piper, 186 So. 2d 489 (Fla. 1966)
- Arflin v. State, 358 So. 2d 592 (Fla. 1st DCA 1978)
- Epley v. Wash. Cnty., 358 So. 2d 592 (Fla. 1st DCA 1978)
- Renate K. Brandal v. State Farm Mut. Auto. Ins. Co., 310 So. 2d 780 (Fla. 1st DCA 1975)