FLORIDA DEPARTMENT OF REVENUE, O/B/O A.L., APPELLANT,
v.
S.B., APPELLEE
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The Florida Department of Revenue appealed a trial court's dismissal with prejudice of its petition to establish paternity and child support for failure to join an indispensable party. The court reversed, holding that dismissal for procedural defects like failure to join a party should be without prejudice, allowing the Department an opportunity to amend its petition.
A dismissal for failure to join an indispensable party should be without prejudice, unless the pleader refuses to amend to add the necessary party. Dismissal with prejudice is a severe sanction appropriate only when it conclusively appears the pleader cannot possibly amend the pleading to state a cause of action, which is not the case with procedural defects.
[1] A dismissal with prejudice is a severe sanction that should only be granted when a party fails to state a cause of action and it conclusively appears that the pleading pa…
[2] A dismissal with prejudice can constitute an abuse of discretion where a party may be able to plead additional facts to support its cause of action or support another cau…
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Establishes the stringent standard for dismissal with prejudice and the court's reasoning for requiring dismissals for procedural defects to be without prejudice.
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Join FLexlaw to unlock all legal intelligenceThe Department of Revenue filed a petition to establish paternity and child support shortly before the child's eighteenth birthday. The trial court di…
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The Department of Revenue seeks reversal of a trial court order dismissing with prejudice, for failure to join an indispensable party, its initial petition to establish paternity, child support, and for the award of other relief. The indispensable party was the child’s legal father. The Department argues that because the dismissal was for a procedural error, not on the merits, the trial court should have dismissed the petition without prejudice. We agree and reverse. See Fla. R. App. P. 9.030(b)(1)(A).
Dismissal with prejudice is a severe sanction. See Obenschain v. Williams, 750 So.2d 771, 772 (Fla. 1st DCA 2000). The trial court should grant such relief only when the pleader has failed to state a cause of action and it conclusively appears that the pleader cannot possibly amend the pleading to state a cause of action. Id. at 772-73. A dismissal with prejudice can constitute an abuse of discretion where a party may be able to plead additional facts to support its cause of action or support another cause of action under a different legal theory. Id. at 773 (citing Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998)). Thus, the trial court should hesitate to dismiss without giving the pleading party an opportunity to amend. See Kapley, 714 So.2d at 1218.
Further, an order dismissing a pleading for lack of an indispensable party is not a merits adjudication. Millsaps v. Orlando Wrecker, Inc., 634 So.2d 680, 681 (Fla. 5th DCA 1994) (citing In re C.T.D., 623 So.2d 834, 834 n. 1 (Fla. 4th DCA 1993); Fulmer v. N. Cent. Bank, 386 So.2d 856 (Fla. 2d DCA 1980)). A dismissal for failing to join an indispensable party should be without prejudice, unless the pleader refuses to amend to add a party necessary for a determination on the merits. See Millsaps, 634 So.2d at 681.
Additionally, although not raised by the Department, it appears that the trial court may have erred in dismissing the case on the theory that the Department failed to join an indispensable party. From the record, it appears that another man was listed as the father on the child’s birth certificate.1 However, an order entered in 2001 vacated a judgment of paternity against that man. Another order entered in 2010 clarified that this other man was not the biological father and his name should be removed from the birth certificate.
The trial court should have entered an order of dismissal with leave to amend in order for the Department to allege the facts necessary to establish that the other man was not a necessary party to this proceeding.
We reverse and remand for further proceedings.
Reversed and remanded.
ALTENBERND and SILBERMAN, JJ., Concur.
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Greater Miami Expressway Agency v. Miami-Dade Cnty. Expressway Auth., 393 So. 3d 794 (Fla. 3d DCA 2023)…t and the final judgment in favor of MDX and against the Defendants, and remand with instructions for the trial court to enter an order granting the Defendants’ motion to dismiss without prejudice. See Fla. Dep’t of Revenue, ex. rel A.L. v. S.B., 124 So. 3d 377, 378 (Fla. 2d DCA 2013) (“A dismissal for failing to join an indispensable party should be without prejudice, unless the pleader refuses to amend to add a party necessary for a determination on the merits.”). ---PAGE 8--- Based on our dispositi…
Authorities Cited
- Kenneth Kapley, D.D.S. v. Borchers, 714 So. 2d 1217 (Fla. 2d DCA 1998)
- Spurgiesz v. Lesley J. Graves, 750 So. 2d 771 (Fla. 5th DCA 2000)
- Fulmer v. N. Cent. Bank, 386 So. 2d 856 (Fla. 2d DCA 1980)
- In re C.T.D., 623 So. 2d 834 (Fla. 4th DCA 1993)
- Millsaps v. Orlando Wrecker, Inc., 634 So. 2d 680 (Fla. 5th DCA 1994)