RICKY MCALPIN AND ANNA MCALPIN, APPELLANTS,
v.
LOUIS ROBERTS, III, IN HIS OFFICIAL CAPACITY AS SHERIFF OF JACKSON COUNTY, FLORIDA, APPELLEE

Fla. 1st DCA | 2016-07-20
No. 1D15-5760
ROWE, OSTERHAUS, and WTNSOR, JJ., concur.
195 So. 3d 1197 Florida District Court of Appeal, First District (2016) Positive Treatment
Cited by 4 cases

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Holding

The appellate court held that the trial court abused its discretion by denying the appellants leave to amend their complaint.


Headnotes

[1] A trial court abuses its discretion by dismissing a complaint with prejudice when there is a possibility that the complaint can be amended to state a cause of action.

[2] Leave to amend a complaint should be liberally granted and should not be denied unless the privilege has been abused.

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Facts & Procedural History

Appellants sued the Sheriff for interfering with their business by enforcing a county ordinance. The Sheriff moved to dismiss on several grounds, incl…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The Appellants operate a tube and canoe rental business on the banks of Spring Creek in Marianna, Florida. They sued the Sheriff of Jackson County, complaining that he and his deputies were interfering with the Appellants’ business by unlawfully attempting to enforce a county ordinance limiting glass and Styrofoam containers in Spring Creek. Among other things, the' Appellants alleged that the Sheriffs deputies had unlawfully entered the Appellants’ property and interfered with “customers in their use of [Appellants’] vessels and other services.”

In response, the Sheriff moved to dismiss claiming (1) the Appellants had failed to comply with the pre-suit requirements of section 768.28, Florida Statutes, (2) the complaint failed to allege sufficient facts to determine whether the action was brought within the applicable limitations period, (3) the Appellants lacked standing to seek declaratory or injunctive relief, and (4) the Appellants had failed to include an indispensable party, Jackson County. After a brief hearing on the motion, the trial court ruled for the Sheriff “on all counts, including the standing issue.” The court denied the Appellants’ request for leave to amend the complaint and entered a short order “finding] for the [Sheriff] on all arguments raised” and dismissing with prejudice.

On appeal, the Appellants argue that the trial court abused its discretion by denying leave to amend. We agree. This Court has previously said that dismissal with prejudice “is a severe sanction which should be granted only when the pleader has failed to state a cause of action, and it conclusively appears that there is no possible way to amend the complaint to state a cause of action.” Obenschain v. Williams, 750 So.2d 771, 772-73 (Fla. 1st DCA 2000). The opportunity to amend should be liberally granted and should not be denied unless the privilege has been abused. Id. at 773.

The Sheriff does not defend the trial court’s decision to dismiss with prejudice on all grounds, arguing instead that the *1199result was justified by the Appellants’ lack of standing.1 However, even if the complaint alleged insufficient facts to. establish standing, the court should have granted the opportunity to amend. See Webb v. Town Council of Town of Hilliard, 766 So.2d 1241, 1244-45 (Fla. 1st DCA 2000) (finding that trial court abused its discretion in dismissing the complaint with prejudice and stating that court should have “dismissed the complaint with leave to amend to correct the deficiencies as to standing”); All Risk Corp. of Fla. v. State, Dep’t of Labor & Emp’t Sec., Div. of Workers’ Comp., 413 So.2d 1200, 1202 (Fla. 1st DCA 1982) (finding that while hearing officer correctly determined party lacked standing based on the allegations, the denial of leave to amend was an, abuse of discretion); Reibel v. Rolling Green Condo. A, Inc., 311 So.2d 156, 158 (Fla. 3d DCA 1975) (reversing order denying defendants’ motion to dismiss for lack of standing and remanding with directions for entry of order dismissing the complaint with leave to' amend). In this case, it is not clear that any amendment would be futile. Notably, the Sheriffs counsel initially seemed to share that view below, concluding his argument at the motion hearing by saying “I do think that.if you do that [dismiss] that you have to offer the [Appellants] an opportunity .to amend, re-plead.” The trial court nonetheless- denied leave, which was an abuse of discretion.

Accordingly, we reverse the order of dismissal and direct the trial court to allow the Appellants an opportunity to amend the complaint.

REVERSED and REMANDED WITH DIRECTIONS.

ROWE, OSTERHAUS, and WTNSOR, JJ., concur.


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Citator

Cited By

  • Carolyn Banks v. Alachua Cnty. Sch. Bd., 275 So. 3d 214 (Fla. 1st DCA 2019)
    …n leave to amend a defective complaint except where the complaint fails to state a cause of action, and it “conclusively appears that there is no possible way to amend the ---PAGE 2--- 2 complaint to state a cause of action”); McAlpin v. Roberts, 195 So. 3d 1197, 1199 (Fla. 1st DCA 2016) (reversing an order dismissing a complaint with prejudice and remanding with instructions to allow the appellants an opportunity to amend). In moving to dismiss, the school board argued the complaint was time-barred by the…
  • …when amending the complaint appears to be futile, the trial court lacks discretion to dismiss an action with prejudice where the plaintiff has not filed an amended complaint and the defendant has not filed a responsive pleading); McAlpin v. Roberts, 195 So. 3d 1197, 1198–99 (Fla. 1st DCA 2016) (reversing order dismissing complaint with prejudice and holding that appellants should be allowed to amend, even though the complaint may have alleged insufficient facts to establish standing); Unrue, 161 So. 3d at 537.…
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