SALLY MOORE, APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, APPELLEE
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Sally Moore appeals a circuit court order granting Liberty Mutual Insurance Company judgment on the pleadings and denying Moore's request to amend her complaint. The appellate court reversed, holding that the trial court erred in denying Moore an opportunity to amend her complaint without finding that amendment would constitute abuse of privilege or that the complaint could not be amended to state a cause of action.
The court held that leave to amend should be granted freely when justice requires, and the circuit court erred in denying amendment without finding either abuse of the privilege to amend or that the complaint could not feasibly be amended to state a cause of action. The trial court should have granted Moore leave to amend her complaint.
[1] A court should grant a party leave to amend a complaint unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a c…
[2] A complaint should be dismissed with prejudice only when it conclusively appears that there is no feasible way to amend the complaint to state a cause of action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A court should grant a party leave to amend the complaint "unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a cause of action."”
Establishes the legal standard for when amendment should be granted versus denied
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Join FLexlaw to unlock all legal intelligenceSally Moore filed a complaint against Liberty Mutual Insurance Company. After responsive pleadings were served and a magistrate issued a recommended o…
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WHATLEY, Judge.
Sally Moore appeals a circuit court order entering judgment on the pleadings in favor of Liberty Mutual Insurance Company and denying Moore’s request to amend her complaint.1 We reverse because the circuit court erred in denying Moore an opportunity to amend her complaint.2
The circuit court incorrectly determined that Moore should not be permitted to amend her complaint, reasoning that “when the Magistrate’s Recommended Order was issued the pleadings were closed. The court rejects the Plaintiffs argument that the Plaintiff should have been able to amend the Complaint or file a reply.”
A court should grant a party leave to amend the complaint “unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a cause of action.” Trotter v. Ford Motor Credit Corp., 868 So. 2d 593, 595 (Fla. 2d DCA 2004); Dingess v. Fla. Aircraft Sales & Leasing, Inc., 442 So. 2d 431, 431-32 (Fla. 5th DCA 1983) (holding that circuit court erred in denying motion for leave to amend complaint and entering a judgment on the pleadings, because appellant should have been given opportunity to amend his complaint where privilege had not been abused and complaint was amendable). A complaint should be dismissed with prejudice only when it conclusively appears that there is no feasible way to amend the complaint in order to state a cause of action. Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822, 824 (Fla. 2d DCA 1997). Here, there is no evidence in the record that the circuit court found that Moore either abused her privilege to amend or that there was no feasible way for her to amend the complaint to state a cause of action. Further, Liberty Mutual did not make these arguments in the circuit court.3
Florida Rule of Civil Procedure 1.190(a) provides as follows:
A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.
Therefore, even though the responsive pleadings had been served, Moore could seek leave of court to amend her complaint and such leave to amend should be granted “freely when justice so requires.” Because it does not appear that there was any argument in the circuit court that Moore either abused her privilege to amend or there was no feasible way that she could amend the complaint to state a cause of action, the circuit court should have granted leave to amend the complaint.
Accordingly, we reverse and remand with directions that Moore be allowed the opportunity to amend her complaint against Liberty Mutual.
Reversed and remanded with directions.
STRINGER and SILBERMAN, JJ., Concur. . The circuit court order approved the recommended order of a magistrate.
. Based on the current pleadings, if Moore were not entitled to amend, the circuit court would have been correct in granting Liberty Mutual’s motion for judgment on the pleadings.
. Liberty Mutual argues on appeal that Moore’s motion to amend her complaint was too late and that it would have been unfairly prejudiced by such amendment on the eve of trial. However, the record reflects that Liberty Mutual filed its amended answer on the same day as Moore's oral request to amend her complaint, which was followed by a written request fourteen days later in her exceptions to the recommended order of the magistrate. Further, Liberty Mutual filed its motion for judgment on the pleadings twenty-two days before the trial was scheduled to begin. See Fla. R. Civ. P. 1.140(c) (providing that a motion for judgment on the pleadings must be filed within such time as not to delay the trial).
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Athany Reyes v. Catherine Nguyen Roush, M.D., 99 So. 3d 586 (Fla. 2d DCA 2012)…n improper pleading [*590] because of the absence of ultimate facts— and because this was the first complaint filed — the trial court ought to have dismissed the complaint without prejudice or with leave to amend. See Moore v. Liberty Mut. Ins. Co., 988 So. 2d 1285 (Fla. 2d DCA 2008); see also Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So. 3d 1190 (Fla. 2d DCA 2011). Ultimately, it may be established that amendment will be futile. But at this stage of the proceeding, public policy favors the liberal amendm…
Authorities Cited
- Walter H.C. Drakeford v. Barnett Bank OF Tampa, 694 So. 2d 822 (Fla. 2d DCA 1997)
- Dingess v. Fla. Aircraft Sales & Leasing, Inc., 442 So. 2d 431 (Fla. 5th DCA 1983)
- Jolene Trotter and John Smith v. Ford Motor Credit Corp., 868 So. 2d 593 (Fla. 2d DCA 2004)