EDWARD AUGUST SIMONIN, APPELLANT,
v.
H. BRYANT SIMS AND FLORENCE CORBETT FLUSSER, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF HENRY FREDERICK LENNING, DECEASED, APPELLEES
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Simonin appeals the dismissal of his complaint against Lenning's estate representatives for malicious prosecution, abuse of process, false imprisonment, emotional distress, and conversion arising from a criminal grand theft charge that was later nolle prossed. The court reversed the dismissal with prejudice, holding that the trial court improperly considered matters outside the complaint and failed to allow amendment.
The trial court erred in dismissing the complaint with prejudice. While dismissal for failure to state a cause of action may have been appropriate, the complaint should not have been dismissed with prejudice and the appellant should have been afforded an opportunity to amend.
[1] A complaint should not be dismissed with prejudice when the plaintiff should be given an opportunity to amend.
[2] A complaint need not anticipate affirmative defenses.
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Join FLexlaw to unlock all legal intelligence“The complaint need not anticipate affirmative defenses.”
Establishes the principle that a plaintiff is not required to plead around or address affirmative defenses in the complaint itself.
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Join FLexlaw to unlock all legal intelligenceSimonin and his wife were employed as live-in help for Lenning and claimed he gave them certain furniture. Upon termination of employment, they remove…
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DOWNEY, Judge.
This appeal arises from a final order dismissing all counts of the appellant’s complaint with prejudice. The complaint includes counts for malicious prosecution, abuse of process, false imprisonment, intentional infliction of emotional distress and conversion.
The facts underlying the complaint involve a dispute over the ownership of certain furniture, which the appellant claimed Mr. Lenning gave to him and his wife while they were employed as Lenning’s live-in help, and which the appellant took into his possession when that employment was terminated and they were ordered to leave the residence. The Simonins removed the furnishings from Lenning’s residence during daylight hours and allegedly advised the police department of their claim to the furniture. Thereafter, Lenning filed a criminal complaint against Mr. and Mrs. Simonin for grand theft of the furniture. The Simo-nins were arrested and incarcerated, the furniture was seized, the incident was broadcast on the news, and the Simonins were allegedly shunned as criminals by friends, neighbors and clients. Approximately nine months later the state nolle prossed the charges. Pending civil litigation as to the ownership of the furniture resulted in favor of Lenning on the basis that the Simonins could not prove the furniture was a gift.
Lenning filed a motion to dismiss Mr. Simonin’s complaint for failure to state a cause of action, alleging that it failed to correctly state the fact that a civil action had determined Lenning was the rightful owner of the furniture, and that this determination reinforced the fact that it was the “unlawful taking” of the furniture by the Simonins that “formed the basis of the probable cause” for their arrest. The trial court dismissed Simonin’s complaint with prejudice based upon the conclusion that probable cause existed for the filing of the criminal complaint and, therefore, “one or more necessary elements in each cause of action were not established by a sufficient factual basis.”
The appellant contends that the trial court erred in dismissing the complaint with prejudice on the basis of judicial notice of (1) the prior civil action wherein it was determined that Lenning was the rightful owner of the property,1 and (2) the contents of the nolle prosse, which recited the state’s reasons (other than lack of probable cause) for the dismissal of the grand theft charge. The appellant submits that the trial court incorrectly considered matters outside the four corners of the complaint and erroneously ruled upon the merits of the cause on the motion to dismiss. See Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3d DCA 1981); Cherry v. Pirrello, 324 So. 2d 158 (Fla. 3d DCA 1975); Tiseo v. Arnold, 237 So. 2d 21 (Fla. 2d DCA 1970); Crutchfield v. Adams, 152 So. 2d 808 (Fla. 1st DCA 1963).
While dismissal of the complaint may have been appropriate for failure to state a cause of action due to certain unsupported allegations, we agree that the complaint should not have been dismissed with prejudice and that the appellant should have been given an opportunity to amend. The complaint need not anticipate affirmative defenses. Lomelo v. Schultz, 422 So. 2d 1050 (Fla. 4th DCA 1982). The affirmative defense that probable cause existed should not preclude the possibility of amendment of the appellant’s complaint, especially in light of the liberality afforded in permitting amendments. Fla.R.Civ.P. 1.110(d) (1983); see, e.g., Enstrom v. Dixon, 354 So. 2d 1251 (Fla. 4th DCA 1978); Weiner v. Lozman and Weinberg, P.A., 340 So. 2d 1247 (Fla. 3d DCA 1976).
REVERSED AND REMANDED.
DAUKSCH, JAMES C., and PURDY, H. MARK, Associate Judges, concur. . See Cazares v. Church of Scientology ' of Cal., 444 So. 2d 442 (Fla. 5th DCA 1983); Rest v. Nathanson, 216 So. 2d 233 (Fla. 4th DCA 1968).
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Stevie Howard v. Greenwich Ins. Co., 45 Fla. L. Weekly D1401 (Fla. 3d DCA 2020)…contract issued by Greenwich. The trial court did not address that issue or give Howard an opportunity to further amend the complaint in order to attach the insurance policy containing the medical payment provision. As stated in Simonin v. Sims, 456 So. 2d 499, 500 (Fla. 4th DCA 1984), While dismissal of the complaint may have been appropriate for failure to state a cause of action due to certain unsupported allegations, we agree that the complaint should not have been dismissed with prejudice and that th…
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Conte v. R & A Food Servs., Inc., 644 So. 2d 133 (Fla. 2d DCA 1994)…ns of a complaint and may not consider defenses which do not appear on its face. E.g., Ehmann v. Florida Nat’l Bank at Ocala, 516 So. 2d 1063 (Fla. 5th DCA 1987). Moreover, a complaint need not anticipate affirmative defenses. E.g., Simonin v. Sims, 456 So. 2d 499 (Fla. 4th DCA 1984). Our review of the complaint and its attachment leads us to conclude that it does not contain sufficient information from which the [*134] trial court could have concluded that the doctrine of merger barred the Contes’ cause of…
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Malone v. City OF Satellite Beach, 717 So. 2d 1067 (Fla. 5th DCA 1998)…of Kissimmee, 383 So. 2d 774 (Fla. 5th DCA 1980). . See Randolph v. Beer, 695 So. 2d 401 (Fla. 5th DCA 1997); Axelrod v.Califano, 357 So. 2d 1048 (Fla. 1st DCA 1978). . Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla.1973); Simonin v. Sims, 456 So. 2d 499 (Fla. 4th DCA 1984); Johnson v. Southern Bell Tel. & Tel. Co., 169 So. 2d 36 (Fla. 3d DCA 1964). . Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. State, Dept. of Health and Rehabilitative Services, 704 So. 2d 58…
Authorities Cited
- Kest v. Nathanson, 216 So. 2d 233 (Fla. 4th DCA 1968)
- Cazares v. The Church OF Scientology OF Cal., Inc., 444 So. 2d 442 (Fla. 5th DCA 1983)
- Crutchfield v. Charles W. and Bessie Adams, 152 So. 2d 808 (Fla. 1st DCA 1963)
- Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So. 2d 1171 (Fla. 3d DCA 1981)
- Trazysie Enstrom v. Liisa A. Dixon, 354 So. 2d 1251 (Fla. 4th DCA 1978)
- Tiseo v. Arnold, 237 So. 2d 21 (Fla. 2d DCA 1970)
- Michael Weiner, M.D. v. Lozman & Weinberg, P.A., 340 So. 2d 1247 (Fla. 3d DCA 1976)
- Eugene S. v. Cherry and Katherine M. Cherry, 324 So. 2d 158 (Fla. 3d DCA 1975)
- Lomelo v. Schultz, 422 So. 2d 1050 (Fla. 4th DCA 1982)