D'BEST LAUNDROMAT, INC., APPELLANT,
v.
BERNARD JANIS, INDIVIDUALLY, AND AS GENERAL PARTNER OF WEST LAKES PLAZA, LTD., APPELLEE
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D'Best Laundromat appealed the dismissal of its amended complaint filed four days late. The court reversed, holding that a four-day delay was an abuse of discretion where the defendant suffered no prejudice and the delay was minimal compared to cases sustaining dismissals.
The court reversed the dismissal, holding that: (1) the plaintiff was not entitled to the additional five-day mailing extension because the ten-day deadline ran from the date the order was signed, not from when it was mailed; and (2) dismissal was an abuse of discretion because a four-day delay was minimal compared to much longer delays in other cases, and the defendant suffered no prejudice.
[1] A trial court order allowing a party to file an amended complaint runs from the date the order is signed, and the mailing of the order does not invoke the additional five…
[2] Dismissing an amended complaint for being four days late is an abuse of discretion when the delay is minor and the opposing party has not demonstrated prejudice.
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Join FLexlaw to unlock all legal intelligence“it was an abuse of discretion for the trial court to dismiss the amended complaint because (a) the amended complaint was only four days late, as opposed to the extensive delays in filing amended complaints in cases where dismissals have been upheld”
Establishes the court's holding that a four-day delay is insufficient grounds for dismissal when compared to much longer delays in precedent
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed D'Best Laundromat's original complaint but granted ten days to file an amended complaint. D'Best filed the amended complaint…
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PER CURIAM.
This is an appeal by the plaintiff D’Best Laundromat, Inc. from a final dismissal of its amended complaint filed below against the defendant Bernard Janis, individually and as general partner of West Lakes Plaza, Ltd. We reverse the final order under review based on the following briefly stated legal analysis.
First, the legal basis for dismissing the amended complaint was that the plaintiff was four days late in filing the subject amended complaint under a prior trial court order dismissing the plaintiff’s original complaint, but allowing the plaintiff ten days to file an amended complaint.
Second, the plaintiff was, in fact, four days late in filing the amended complaint under the aforesaid court order and was not, as urged, entitled to five additional days within which to file said amended complaint under Fla.R.Civ.P. 1.090(e). The order allowing the amended complaint ran, by its very terms, from the date the order was signed. The plaintiff was informed of same at the hearing on the motion to dismiss, and the fact that the trial court’s conformed order was thereafter mailed to the plaintiff did not invoke the additional five-days-for-mailing provision under Fla.R. Civ.P. 1.090(e).
Third, it was an abuse of discretion for the trial court to dismiss the amended complaint because (a) the amended complaint was only four days late, as opposed to the extensive delays in filing amended complaints in cases where dismissals have been upheld, New River Yachting Center v. Bacchiocchi, 407 So. 2d 607, 609 (Fla. 4th DCA 1981) (seven months late), pet. for review denied, 415 So. 2d 1360 (Fla.1982); E & E Elec. Contractors, Inc. v. Singer, 236 So. 2d 195, 196-97 (Fla. 3d DCA) (sixty-three days late), cert. dismissed, 239 So. 2d 827 (Fla.1970); National Shawmut Bank of Boston v. Woodard, 220 So. 2d 636 (Fla. 3d DCA) (almost five months late), cert. denied, 225 So. 2d 917 (Fla.1969), and (b) the defendant demonstrated no prejudice below by the four-day delay in filing the amended complaint other than one created by himself when he unjustifiably took action prior to the entry of the final order of dismissal below. See Wackenhut Protective Sys. v. Key Biscayne Commodore Club Condominium I, Inc., 350 So. 2d 1150, 1151-52 (Fla. 3d DCA 1977); Penn Cork & Closures, Inc. v. Piggyback Shippers Ass’n of Fla., 281 So. 2d 46, 47 (Fla. 3d DCA 1973). The final order of dismissal under review is reversed, and the cause is remanded to the trial court with directions to reinstate the plaintiff’s amended complaint.
Reversed and remanded.
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Dominguez v. Barakat, 609 So. 2d 664 (Fla. 3d DCA 1992)…] Fla.R.Civ.P. 1.090(e). In contrast, the ten-day service requirement of Fla.R.Civ.P. 1.530(b) runs from “the filing of the judgment.” [e.s.] See Grabarnick v. Florida Homeowners Ass’n, 419 So. 2d 1065 (Fla.1982);1 D’Best Laundromat, Inc. v. Janis, 508 So. 2d 1325 (Fla. 3d DCA 1987); Wilson v. Clark, 414 So. 2d 526 (Fla. 1st DCA 1982); see also Shields v. Colonial Penn Ins. Co., 513 So. 2d 1363 (Fla. 5th DCA 1987); Bouchard v. State Dep’t of Business Regulation, 448 So. 2d 1126 (Fla. 2d DCA 1984). by mail.” […
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Sekot Labs., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990)…fied.* In the present case the delay was short, and it was abundantly clear at all times that the plaintiff intended to go forward. See Kerry’s Bromeliad Nursery, Inc. v. Reiling, 561 So. 2d 1305 (Fla. 3d DCA 1990); D’Best Laundromat, Inc. v. Janis, 508 So. 2d 1325, 1326 (Fla. 3d DCA 1987), and cases cited therein. We affirm the orders of dismissal but reverse insofar as they dismissed with prejudice. Affirmed in part, reversed in part. * The limitation period had not run, so the effect was not that of dis…
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Earnest Mathis, Jr. v. Fla. Dep't OF Corr., 726 So. 2d 389 (Fla. 1st DCA 1999)…tten the long dormant, contingent deadline the order contains. We also note correspondence of record reflecting efforts in apparent good faith to settle with DOC. Nor is there any suggestion of prejudice to DOC. See D’Best Laundromat, Inc. v. Janis, 508 So. 2d 1325 (Fla. 3d DCA 1987). PERC had no authority to deny Mr. Mathis any back pay simply because he failed to meet the deadline. Reversed and remanded. PADOVANÓ, J., CONCURS. BOOTH, J., SPECIALLY CONCURRING IN RESULT ONLY. « . We express no opinion on t…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Wackenhut Protective Sys., Inc. v. KEY Biscayne Commodore Club Condo. I, Inc., 350 So. 2d 1150 (Fla. 3d DCA 1977)
- Penn Cork & Closures, Inc. v. Piggyback Shippers Ass'n OF Fla., Inc., 281 So. 2d 46 (Fla. 3d DCA 1973)
- The Nat'l Shawmut Bank OF Boston v. Woodard, 220 So. 2d 636 (Fla. 3d DCA 1969)
- Duff v. State, 225 So. 2d 917 (Fla. 1969)
- Tillman v. Wainwright, 225 So. 2d 917 (Fla. 1969)
- 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)