ELIJAH THOMPSON, APPELLANT,
v.
MCNEILL COMPANY, INC., APPELLEE

Fla. 1st DCA | 1985-03-05
No. AZ-77
THOMPSON, J., concurs., WENTWORTH, J., dissents with written opinion.
464 So. 2d 244 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 4 cases
Topics
Leave To Amend Dismissal With Prejudice Dismissal Without Prejudice Abuse Of Discretion

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

The trial court dismissed with prejudice appellant’s first amended complaint. Appellant argues that the trial court erred in doing so, as the amended complaint alleged sufficient ultimate facts to state a cause of action. Alternatively, appellant contends that the court abused its discretion in dismissing the complaint without leave to amend. We affirm the order of dismissal, but since the complaint has been amended only once, and there has been no showing either that appellant has abused the privilege to amend or that the complaint is clearly not amendable, we hold that the trial court did abuse its discretion and direct that the order of dismissal be revised to reflect dismissal of the compláint “without prejudice.” Adams v. Knabb Turpentine Company, Inc., 435 So. 2d 944 (Fla. 1st DCA 1983); Wiggins v. Tart, 407 So. 2d 1094 (Fla. 1st DCA 1982).

THOMPSON, J., concurs.

WENTWORTH, J., dissents with written opinion.

Dissent
WENTWORTH, Judge,

WENTWORTH, Judge,

dissenting.

I would find that the complaint is not fatally deficient and would therefore reverse and remand for further proceedings.

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Cited By

  • Hamide v. State of Fla. Dep't OF Corr., 548 So. 2d 877 (Fla. 1st DCA 1989)
    …the privilege to amend has been abused or that the complaint is clearly unamendable, it is an abuse of discretion to dismiss a complaint with prejudice. See Crews v. Ellis, 531 So. 2d 1372, 1375 (Fla. 1st DCA 1988); Thompson v. McNeil Company, Inc., 464 So. 2d 244 (Fla. 1st DCA 1985); Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So. 2d 679 (Fla. 1st DCA 1982); Town of Micanopy v. Connell, 304 So. 2d 478 (Fla. 1st DCA 1984); Countryside Christian Center, Inc. v. City of Clearwater, 542 So. 2d 1037 (Fla. 2d…
  • The Downtown Invs., Ltd. v. E.M. Segall, 551 So. 2d 561 (Fla. 3d DCA 1989)
    …een no showing either that appellant has abused the privilege to amend or that the complaint is clearly not amendable, ... ’” Kennedy v. Santa Rosa Island Authority, 530 So. 2d 520, 521 (Fla. 1st DCA 1988) (quoting Thompson v. McNeill Company, Inc., 464 So. 2d 244 (Fla. 1st DCA 1985). As a secondary matter, appellant responds to appellees’ estoppel argument by contending that the appellees/defen-dants herein, as well as the claims and issues asserted against them, are new to this action. We agree. The judgm…
  • Strachan Shipping Co. v. Spigner, 573 So. 2d 926 (Fla. 1st DCA 1991)
    …s not established by the complaint and, thus, dismissal for this reason was inappropriate. We further find that the other reasons asserted by appellees do not support dismissal of the complaint without leave to amend. Thompson v. McNeill Co., Inc., 464 So. 2d 244 (Fla. 1st DCA 1985). While the complaint is somewhat vague, it appears that the plaintiff’s request for relief involved a determination of the applicability of the immunity contained in section 440.11, Florida Statutes, to an ascertainable set of fa…

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