COUNTRYSIDE CHRISTIAN CENTER, INC., APPELLANT,
v.
CITY OF CLEARWATER, A MUNICIPAL CORPORATION IN THE STATE OF FLORIDA, APPELLEE
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Trial court erred in dismissing with prejudice a complaint challenging a city's annexation-before-sewer-service policy; dismissal should have been without prejudice to allow amendment.
A complaint deficient for failure to state a cause of action must be dismissed without prejudice unless it is clear the complaint cannot be amended.
[1] A complaint dismissed for failure to state a cause of action must be dismissed without prejudice where it is not clear that the complaint cannot be amended.
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Join FLexlaw to unlock all legal intelligenceCountryside Christian Center challenged the City of Clearwater's policy requiring annexation before providing sanitary sewer service and sought declar…
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RYDER, Acting Chief Judge.
Appellant/plaintiff Countryside Christian Center, Inc. challenges an order in which the trial court denied its motion for preliminary injunction and dismissed with prejudice its complaint against appel-lee/defendant City of Clearwater. The complaint sought a declaratory judgment as to whether the City’s policy of requiring annexation before it will provide sanitary sewer service to appellant is unlawful, and requested preliminary and permanent in-junctive relief to prevent the City from enforcing its policy against appellant. Appellant admits that the complaint was deficient, but argues that it should have been granted leave to amend. We agree. It is error for a trial court to dismiss a complaint with prejudice where the complaint is not clear that the complaint cannot be amended. Crews v. Ellis, 531 So. 2d 1372, 1375 (Fla. 1st DCA 1988). Thus, although the trial court was correct in dismissing the complaint for failure to state a cause of action, it should have done so without prejudice to appellant to amend. Allstate Insurance Co. v. Anderson, 360 So. 2d 473, 474 (Fla. 3d DCA 1978).
Affirmed in part and reversed in part for further proceedings consistent with this opinion.
DANAHY and PATTERSON, JJ., concur.
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Kenneth Kapley, D.D.S. v. Borchers, 714 So. 2d 1217 (Fla. 2d DCA 1998)…offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action. See Countryside Christian Center, Inc. v. City of Clearwater, 542 So. 2d 1037 (Fla. 2d DCA 1989); Central Florida Inv., Inc. v. Levin, 659 So. 2d 492 (Fla. 5th DCA 1995). Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory,…
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Carolann D. Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992)…e initial complaint with prejudice, the trial court had the discretion to require plaintiff’s counsel to draft a complaint that would better facilitate subsequent proceedings in the case. See Countryside Christian Center, Inc. v. City of Clearwater, 542 So. 2d 1037 (Fla. 2d DCA 1989). The dismissal of the amended complaint with prejudice is a more difficult issue. There are numerous cases, especially older cases, holding that a trial court has the discretion to dismiss an amended complaint when the plaintiff…
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Hamide v. State of Fla. Dep't OF Corr., 548 So. 2d 877 (Fla. 1st DCA 1989)…ny, 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 DCA 1989); Albrecht v. Board of Trustees of Internal Improvement Fund, 481 So. 2d 555 (Fla. 2d DCA 1986); Dingess v. Florida Aircraft Sales & Leasing, Inc., [*879] 442 So. 2d 431, 432 (Fla. 5th DCA 1983); Reid v. Reid, 396 So. 2d 818 (Fla.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fuller Crews, Sr. v. Ellis, 531 So. 2d 1372 (Fla. 1st DCA 1988)
- Allstate Ins. Co. v. Anderson, 360 So. 2d 473 (Fla. 3d DCA 1978)