CENTRAL FLORIDA INVESTMENTS, INC., APPELLANT,
v.
CHARLES LEVIN, TIMESHARES, ETC., ET AL., APPELLEES
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Trial court improperly dismissed with prejudice a complaint for negligent misrepresentation without allowing amendment; reversed and remanded to permit filing of amended complaint.
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.
[1] A dismissal with prejudice is improper without affording the plaintiff an opportunity to amend unless it is clear that the pleading cannot be amended to state a cause of…
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Join FLexlaw to unlock all legal intelligenceCentral Florida Investments filed a complaint against Denny's, Inc. alleging negligent misrepresentation. The trial court dismissed the complaint with…
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EVANDER, K.I., Associate Judge.
Central Florida Investments, Inc. (Central) appeals a final order of the trial judge dismissing with prejudice its complaint against one of the party defendants, Denny’s, Inc. (Denny’s) for failure to state a cause of action. Although the trial court correctly dismissed Central’s complaint for negligent misrepresentation against Denny’s, it was improper to dismiss such complaint 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 (Fla. 4th DCA 1984). In the present case, Central was not given even a second opportunity to attempt to state a cause of action against Denny’s. Furthermore, we cannot definitely state that Central could not bring a count for injunctive relief against Denny’s seeking to prevent Denny’s from aiding and abetting certain codefendants from disseminating alleged false and fraudulent information to prospective customers of Central. RDS Manufacturing, Inc. v. Daws Manufacturing Co., Inc., 598 So. 2d 193 (Fla. 1st DCA 1992); Channell v. Applied Research, Inc., 472 So. 2d 1260 (Fla. 4th DCA 1985).
Accordingly, this cause is reversed and remanded with instructions to the trial court to grant Central leave to file an amended complaint.
REVERSED and REMANDED with instructions.
DAUKSCH and W. SHARP, JJ., concur.
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Kenneth Kapley, D.D.S. v. Borchers, 714 So. 2d 1217 (Fla. 2d DCA 1998)…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, dismissal with prejudice is an abuse of discretion. See Harper Companie…
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Lewis B. Freeman for NorthAmerican Fin. Servs., Inc. v. Dean Witter Reynolds, Inc., 865 So. 2d 543 (Fla. 2d DCA 2003)…sed without giving the customers an opportunity to amend, unless it is clear that the pleading cannot be amended to state a cause of action. See Becklund v. Fleming, 28 Fla. L. Weekly D2330 (Fla. 2d DCA Oct.10, 2003); Cent. Fla. Inv., Inc. v. Levin, 659 So. 2d 492, 492 (Fla. 5th DCA 1995). Accordingly, although we agree that the trial court was authorized to dismiss the individual claims as pleaded, we reverse the dismissal of these claims with prejudice. On remand, these individual parties should be given an…
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Becklund v. Fleming, 869 So. 2d 1 (Fla. 2d DCA 2003)…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, dismissal with prejudice is an abuse of discretion. See Harper Companie…
Previewing 3 of 7 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)
- Channell v. Applied Research, Inc., 472 So. 2d 1260 (Fla. 4th DCA 1985)
- RDS Mfg., Inc. v. Daws Mfg. Co., Inc., 598 So. 2d 193 (Fla. 1st DCA 1992)