ALLIED GENERAL, INC., A FLORIDA CORPORATION, AND JOSEPH L. GREENWELL, INDIVIDUALLY AND ON BEHALF OF THAT CLASS OF PERSONS CONSTITUTING PRESENT AND FORMER OWNERS OF CAPITAL STOCK OF ALLIED GENERAL, INC., APPELLANTS,
v.
HELLIWELL, MELROSE & DE WOLF, A FLORIDA PROFESSIONAL ASSOCIATION, TRUMAN A. SKINNER, BANK OF PERRINE, A FLORIDA BANKING CORPORATION AND WILLIAM H. LOSNER, APPELLEES
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PER CURIAM.
Affirmed. Neida’s Boutique, Inc. v. Gabor and Co., 348 So. 2d 1196 (Fla.3d DCA 1977), cert. denied, 366 So. 2d 883 (Fla.1978); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So. 2d 69 (Fla.3d DCA 1972); E. & E. Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla.3d DCA), cert. dismissed, 239 So. 2d 827 (Fla.1970). See New River Yachting Center, Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981), pet. for review denied, 415 So. 2d 1360 (Fla.1982).
FERGUSON, Judge
(specially concurring).
I write only to express disagreement with the cases cited above which suggest that an order of dismissal with leave to amend within a specified number of days is an order to amend. Such an order is a nonprejudicial dismissal with permission to file an amended complaint. Failure to amend within the allotted time is not a failure to comply with an order of the court, but is a continuing failure to state a cause of action after having commenced the litigation. Appellant could have taken a voluntary dismissal, without prejudice, at any time before entry of a dismissal with prejudice. Edward L. Nezelek, Inc. v. Sunbeam Television Corporation, 413 So. 2d 51 (Fla. 3d DCA 1982).
Appellant did not attempt to file an amended complaint until twenty-five days after the time permitted by the first order. I agree that appellant failed to demonstrate that the court’s dismissal of its complaint with prejudice, after a hearing on appellee’s motion, was an abuse of discretion. The notice of hearing on the motion to dismiss with prejudice did not meet the requirements of Rule 1.090(d), but the defect was waived.
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Metro. Life Ins. Co. v. McCARSON, 467 So. 2d 277 (Fla. 1985)…EHRLICH, Justice. This cause is before us because the decision of the district court in Metropolitan Life Insurance Co. v. McCarson, 429 So. 2d 1287 (Fla. 4th DCA 1983), directly and ex [*278] pressly conflicts with a decision of another district court, Gmuer v. Garner, 426 So. 2d 972 (Fla. 2d DCA 1982). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, .and we approve in p…
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Dominguez v. Equitable Life Assurance Soc'y OF the United States, 438 So. 2d 58 (Fla. 3d DCA 1983)…Laboratories, Inc., 379 So. 2d 451 (Fla. 1st DCA 1980) (same); Ford Motor Credit Co. v. Sheehan, 373 So. 2d at 960 (same); Dowling v. Blue Cross of Florida, Inc., 338 So. 2d 88 (Fla. 1st DCA 1976) (same); Metropolitan Life Insurance Co. v. McCarson, 429 So. 2d 1287 (Fla. 4th DCA 1983) (cause of action allowed); Boyles v. Mid-Florida Television Corp., 431 So. 2d 627 (Fla. 5th DCA 1983) (cause of action recognized, but not properly pleaded); Habelow v. Travelers Insurance Co., 389 So. 2d 218 (Fla. 5th DCA 1980)…
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Zbigniew Scheller v. Am. Med. Int'l Inc., 502 So. 2d 1268 (Fla. 4th DCA 1987)…nless incident to or connected with an independent tort. That position was most recently confirmed by the Second District Court of Appeal in Gmuer v. Garner, 426 So. 2d 972 (Fla. 2d DCA 1982). However, in Metropolitan Life Insurance Co. v. McCarson, 429 So. 2d 1287 (Fla. 4th DCA 1983), this court adopted the rule set forth in section 46, Restatement (Second) of Torts (1965), and held that an independent tort exists in Florida for intentional infliction of emotional distress. There is no requirement that it be…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)
- NEW River Yachting Ctr., Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981)
- E & E Elec. Contractors, Inc. v. Myron Singer and Eleanor Singer, 236 So. 2d 195 (Fla. 3d DCA 1970)
- Miami Auto Auction, Inc. v. Friendly Enters., Inc., 257 So. 2d 69 (Fla. 3d DCA 1972)
- S. Bell Tel. & Tel. Co. v. Fasce, 348 So. 2d 1196 (Fla. 3d DCA 1977)
- Neida's Boutique, Inc. v. Gabor & Co., 348 So. 2d 1196 (Fla. 3d DCA 1977)
- E & E Elec. Contractors, Inc. v. Myron Singer and Eleanor Singer, 239 So. 2d 827 (Fla. 1970)
- Carmelo Hernandez v. E. Coast Fisheries Inc., 239 So. 2d 827 (Fla. 1970)