NINA SOLONENKO, APPELLANT,
v.
VOGUE PROPERTIES, LLC, APPELLEE
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Florida appellate court reversed dismissal of quiet title action, holding that a party has the right to amend a complaint once as a matter of course before a responsive pleading is served, even if amendment appears futile.
A party has the right to amend a pleading once as a matter of course before a responsive pleading is served, and a motion to dismiss is not a responsive pleading.
[1] A motion to dismiss is not a responsive pleading, and therefore a party retains the right to amend a complaint once as a matter of course even after a motion to dismiss i…
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Join FLexlaw to unlock all legal intelligence“A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.”
Court citing Florida Rule of Civil Procedure 1.190(a) to establish the right to amend before responsive pleading
Appellant brought a quiet title action against appellee. Appellee filed a motion to dismiss without filing a responsive pleading, and the trial court …
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Appellant challenges the trial court’s order granting appellee’s motion to dismiss the action, arguing it erred in failing to allow her to amend her complaint. We agree with appellant and reverse. “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served....” Fla. R. Civ, P. 1.190(a). A motion to dismiss is not a responsive pleading. Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005).
Appellant brought a ■ quiet title action against appellee. Appellee did not file a responsive pleading, but did file a motion to dismiss. The trial court granted the motion and dismissed the action with prejudice. Appellant moved for rehearing, arguing she had the right to amend her complaint once as a matter of right. The trial court denied her motion without allowing her, to amend the complaint.' This was error. See Thompson v. Publix Supermarkets, Inc., 615 So.2d 796, 797 (Fla. 1st DCA 1993) (holding trial court erred by failing to allow appellant to amend complaint, where such relief was sought in motion for rehearing). While appellee argues amendment of the complaint would be futile, appellant has the right to amend her complaint, even if it appears likely that the amended complaint would be meritless. See Unrue v. Wells Fargo Bank, N.A., 161 So.3d 536, 537 (Fla. 5th DCA 2014). Accordingly, we reverse.
Reversed.
STEVENSON, DAMOORGIAN and LEVINE, JJ., concur.
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Fla. Water & Mold Restoration, LLC v. Am. Intergrity Ins. Co. of Fla. (Fla. 4th DCA 2022)…efore a responsive pleading is served. . . . A judge’s discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once.”); Solonenko v. Vogue Props., LLC, 192 So. 3d 87, 87 (Fla. 4th DCA 2016) (“Appellant moved for rehearing, arguing she had the right to amend her complaint once as a matter of right. The trial court denied her motion without allowing her to amend the complaint. This was error.”); D’Alessandro v.…
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THE Est. of Carol Desantis v. Skyline Healthcare (Fla. 2d DCA 2021)…ss'n, 133 So. 3d 576, 577 (Fla. 2d DCA 2014); see also Dot (SR), Inc. v. Telesur, 136 So. 3d 1239, 1241 n.2 (Fla. 2d DCA 2014). This is true even if it seems that amending the complaint would be a futile effort. See Solonenko v. Vogue Props., LLC, 192 So. 3d 87, 87 (Fla. 4th DCA 2012) ("While appellee argues amendment of the complaint would be futile, appellant has the right to amend her complaint, even if it appears likely that the amended complaint would be meritless."). Because the Estate was not affor…
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Authorities Cited
- Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)
- Thompson v. Publix Supermarkets, Inc., 615 So. 2d 796 (Fla. 1st DCA 1993)
- Unrue v. Wells Fargo Bank, N.A., 161 So. 3d 536 (Fla. 5th DCA 2014)