FRANK A. BALCAR, APPELLANT,
v.
ANTHONY E. RAMOS, D/B/A ANTHONY E. RAMOS, ATTORNEY AT LAW, APPELLEE
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The court held that a dismissal with prejudice should not be ordered without giving the party an opportunity to amend unless it is clear the pleading cannot be amended to state a cause of action.
Appellant filed a complaint raising claims of breach of contract, defamation, conspiracy, and fraud. Appellee moved to dismiss the complaint due to le…
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PER CURIAM.
Frank A. Balear, pro se appellant, brings this timely appeal of the trial court’s order granting with prejudice Anthony E. Ramos’s motion to dismiss. We reverse the trial court’s decision.
In his initial complaint, Balear raised claims of breach of contract, defamation, conspiracy, and fraud. Ramos filed a motion to dismiss on the grounds that the complaint was replete with legal and technical difficulties. The trial court granted the motion with prejudice.
“A dismissal with prejudice should not be ordered without giving the party offering the defective pleading an opportunity to amend unless it is clear that the pleading cannot be amended so as to state a cause of action.” Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621, 622 (Fla. 4th DCA 1984); accord Kovach v. McLellan, 564 So. 2d 274, 276 (Fla. 5th DCA 1990). Because we are unable to determine with certainty that Balear cannot amend his initial complaint to state a cause of action, we reverse the trial court. On remand, the trial court shall permit Balear to file an amended complaint.
REVERSED AND REMANDED.
DELL, GUNTHER and FARMER, JJ., concur.
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Bryant v. State, 901 So. 2d 810 (Fla. 2005)…ate a cause of action”); Imperatore v. NationsBank of Florida, 677 So. 2d 933, 935 (Fla. 4th DCA 1996) (finding abuse of discretion where the trial court dismissed a complaint with prejudice without allowing the plaintiff to amend); Balcar v. Ramos, 595 So. 2d 308, 308 (Fla. 4th DCA 1992) (stating same as Nev. Interstate Props. Corp.). Had the circuit court stricken the motion with leave to amend, the amended motion Bryant filed in March 2003 would have been timely because it would have related back to the or…
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Green Acres, Inc. v. First Union Nat'l Bank OF Fla., 637 So. 2d 363 (Fla. 4th DCA 1994)…es” may not be the law [*365] regarding opportunities to amend before dismissing a complaint -with prejudice, purchasers should be afforded a second chance here. See Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993); Balcar v. Ramos, 595 So. 2d 308 (Fla. 4th DCA 1992); Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621 (Fla. 4th DCA 1984). In addressing the caveat emptor barrier, purchasers assert that when the Florida Supreme Court abolished caveat emptor in residential real estate transactions,…
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RHS Corp. v. City OF Boynton Beach & Clear Copy, Inc., 736 So. 2d 1211 (Fla. 4th DCA 1999)…t "[a] dismissal with prejudice should not be ordered without giving the party offering the defective pleading an opportunity to amend unless it is clear that the pleading cannot be amended so as to state a [*1214] cause of action.” Balcar v. Ramos, 595 So. 2d 308, 308 (Fla. 4th DCA 1992) (quoting Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621, 622 (Fla. 4th DCA 1984)). That issue was not raised on appeal, and had it been, "we note that we would not have been able to address the claim because the record does…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Tr. Agreement of Jane Greer Kelly, 448 So. 2d 621 (Fla. 4th DCA 1984)
- Brown v. State, 564 So. 2d 274 (Fla. 1st DCA 1990)