JOHN LEE ARNOLD, I I INDIVIDUALLY AND AS PARTNER OF ARNOLD FAMILY LIMITED PARTNERSHIP

v.

ARNOLD FAMILY LIMITED PARTNERSHIP

KELLY, Judge. In this partnership dispute, John Lee Arnold, II, individually and as partner of the Arnold Family Limited Partnership (AFLP),

appeals an order that struck his amended complaint and then dismissed his initial complaint against AFLP without prejudice to file a "new and separate" action.

We reverse. After Arnold filed his initial complaint, AFLP filed a "Motion to Strike Pleadings and Dismiss with Prejudice for Fraud Upon the Court." The motion argued the court should strike the complaint and dismiss the action with prejudice because Arnold had attached a fraudulent document to his complaint to support his claim for breach of the partnership agreement. Shortly before the hearing on AFLP's motion, Arnold filed an amended complaint. AFLP proceeded to have its motion, which was addressed to the original complaint, heard at a nonevidentiary hearing. In essence, it argued that the amended complaint did not negate the fraud allegedly perpetrated by the initial complaint, that the court should strike the amended complaint, and that the action should be dismissed for fraud on the court. Arnold argued the original complaint was no longer the operative complaint and that AFLP's motion directed to the original complaint was mooted by the amendment.

Ultimately, the trial court declined to find fraud or that Arnold engaged in "a deliberate scheme calculated to subvert the judicial process." However, after striking the amended complaint for having been filed without leave of court, it found that the exhibits attached to the original complaint were "directly contradicted" by the complaint's allegations, and it dismissed the complaint without prejudice to file a "new and separate action." Arnold argues that the trial court should have accepted his amended complaint as the operative complaint and that the court erred in ruling on AFLP's motion to dismiss the original complaint.

We agree. "[A] plaintiff has the absolute right to amend a complaint once as a matter of course before a responsive pleading is served, and a trial court has no discretion to deny such an amendment." Boca Burger, Inc. v. Forum, 912 So. 2d 561, 563 (Fla. 2005); see also Fla. R. Civ. P. 1.190(a).

The trial court believed that AFLP's motion to strike and dismiss for fraud upon the court was a responsive pleading.

However, "a motion to dismiss is not a 'responsive pleading' because it is not a 'pleading' under the rules." Boca Burger, 912 So. 2d at 567 (citing Fla. R. Civ. P. 1.100(a)).

Accordingly, the trial court erred when it struck the amended complaint and dismissed the original complaint. AFLP argues the rule articulated in Boca Burger should not apply where the motion to dismiss is essentially a motion to sanction a party for fraud upon the court rather than a motion raising the failure of a complaint to state a cause of action. It maintains that in such circumstances a party should not be permitted to avoid accountability for the alleged fraud by simply amending the complaint. We need not decide whether this argument is well taken because here, the court did not find an attempt to commit fraud upon the court and its ruling striking the amended complaint was not a sanction.

Accordingly, we reverse the dismissal order and remand for reinstatement of the action.

Reversed and remanded with instructions. VILLANTI and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication.