KENNETH KAPLEY, D.D.S., M.S.D., APPELLANT,
v.
JOHN M. BORCHERS, INDIVIDUALLY, APPELLEE
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A dentist appealed the dismissal with prejudice of his complaint against an individual defendant. The court held that the trial court abused its discretion by dismissing with prejudice without giving the plaintiff an opportunity to amend, and reversed and remanded the case.
The trial court abused its discretion in dismissing the complaint with prejudice against the individual defendant. A dismissal with prejudice should not be ordered without an opportunity to amend unless the party offering the pleading has abused the privilege to amend or it is clear that the pleading cannot be amended to state a cause of action. Since it was not clear from the record that no cause of action could ever be alleged against the individual defendant, appellant should have been given the opportunity to amend.
[1] A dismissal with prejudice is an abuse of discretion when a party has not been given an opportunity to amend a pleading, unless the privilege to amend has been abused or…
[2] Where a party may be able to allege additional facts to support its cause of action or another cause of action based on a different legal theory, dismissal with prejudice…
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Join FLexlaw to unlock all legal intelligence“A dismissal with prejudice should not be ordered without giving the party 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.”
Establishes the standard governing when dismissal with prejudice is appropriate.
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Join FLexlaw to unlock all legal intelligenceAppellant Kapley filed a three-count complaint against five corporate defendants doing business as "Gentle Dental Care" and against appellee Borchers …
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CAMPBELL, Acting Chief Judge.
Appellant challenges the trial court order dismissing with prejudice his complaint against appellee. Because we conclude that appellant should have been given an opportunity to amend his complaint to attempt to state a cause of action against appellee individually, we reverse.
Appellant filed a three-count complaint against five corporate defendants engaged in the practice of dentistry under the name of “Gentle Dental Care” and against appellee individually alleging that appellee controlled the Gentle Dental Care defendants and executed the contract sued upon. The Gentle Dental Care defendants, who are not parties to this appeal, filed motions to dismiss, alleging that appellant failed to state a cause of action against them because the only parties to the contract were appellant and the independent corporation, Gentle Dental Orthodontics, Inc. Appellant alleged in his complaint that Gentle Dental Orthodontics was the agent of, and interrelated with, all the corporate defendants. After a hearing which was not transcribed, the trial court granted the Gentle Dental defendants’ motion to dismiss, but allowed appellant twenty days to amend his complaint against them.
The trial court granted appellee’s motion to dismiss with prejudice the complaint against him individually. This appeal followed.
After a review of the record, we conclude that the trial court abused its discretion in dismissing the complaint with prejudice against appellee individually. A dismissal with prejudice should not be ordered without giving the party 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, dismissal with prejudice is an abuse of discretion. See Harper Companies v. Scott, Royce, Harris, Bryan, Barra, & Jorgensen, P.A., 656 So. 2d 627 (Fla. 4th DCA 1995); Kovach v. McLellan, 564 So. 2d 274 (Fla. 5th DCA 1990).
While it may have been proper to dismiss the complaint against appellee individually for failure to state a cause of action, we conclude it was an abuse of discretion to do so with prejudice since it was not clear from the record that a cause of action could never be alleged against appel-lee individually. Appellant should have therefore been given an opportunity to amend.
Reversed and remanded with directions.
FULMER and NORTHCUTT, JJ., concur.
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Citator
Cited By (21 total)
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Bryant v. State, 901 So. 2d 810 (Fla. 2005)…s to amend his complaint); Jennings v. Montenegro, 792 So. 2d 1258, 1260 (Fla. 4th DCA 2001) (noting that the trial court granted plaintiffs an initial ten days to amend their complaint and fourteen days for a further amendment); Kapley v. Borchers, 714 So. 2d 1217, 1218 (Fla. 2d DCA 1998) (noting that the trial court granted plaintiff twenty days to amend the complaint); Haas v. Roe, 704 So. 2d 1117, 1117 (Fla. 2d DCA 1998) (noting that the trial court granted plaintiff thirty days to amend the complaint); Wa…
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Vorbeck v. Betancourt, 107 So. 3d 1142 (Fla. 3d DCA 2012)…la. 4th DCA 1988). “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.” Kapley v. Borchers, 714 So. 2d 1217, 1218 (Fla. 2d DCA 1998). In this case, the trial court dismissed the Vorbeck’s original complaint with prejudice while simultaneously acknowledging that the Vorbecks possessed a potential statutory cause of action. Thus, it cannot be said that it…
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Hayward & Assocs., Inc. v. M. Dexter Hoffman, Noel K. Evans, & Evans & Donica, P.A., 793 So. 2d 89 (Fla. 2d DCA 2001)…at least some of these claims. Because this was Hayward and Associates' first complaint, to enter a final order dismissing this complaint with prejudice and without opportunity to amend would have been an abuse of discretion. See Kapley v. Borchers, 714 So. 2d 1217 (Fla. 2d DCA 1998).…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 564 So. 2d 274 (Fla. 1st DCA 1990)
- Countryside Christian Ctr., Inc. v. City OF Clearwater, 542 So. 2d 1037 (Fla. 2d DCA 1989)
- Cent. Fla. Invs., Inc. v. Levin, 659 So. 2d 492 (Fla. 5th DCA 1995)
- Edwards v. State, 656 So. 2d 627 (Fla. 1st DCA 1995)
- Harper Cos., Inc. v. Scott, 656 So. 2d 627 (Fla. 4th DCA 1995)