ARLEEN HANNA-MACK, APPELLANT,
v.
BANK OF AMERICA, N.A., ET AL., APPELLEES

Fla. 3d DCA | 2017-04-12
No. 3D16-1897
Before SALTER, EMAS and FERNANDEZ, JJ.
218 So. 3d 971 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Arleen Hanna-Mack appealed the dismissal with prejudice of her complaint against Bank of America for trespass, illegal lockout, and conversion of personal property related to her residence. The Third District Court of Appeal reversed the dismissal, holding that the trial court improperly dismissed the complaint with prejudice without express deadlines and that several counts stated legally sufficient causes of action.


Holding

The court reversed the dismissal with prejudice, holding that absent an express provision specifying a deadline and consequences for failure to amend, dismissal with prejudice is improper after an initial dismissal without prejudice. The court further held that, accepting Ms. Hanna-Mack's factual allegations as true and construing inferences in her favor, several counts including trespass and conversion stated legally sufficient causes of action.


Headnotes

[1] A dismissal with prejudice following a first dismissal without prejudice is improper absent an express provision in the order specifying the deadline and consequences for…

[2] A pro se litigant's failure to amend a complaint after a first dismissal does not automatically support a final dismissal with prejudice, absent evidence of willful, deli…

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Key Quotes

“we have repeatedly held that the failure to amend after a first dismissal, despite leave to do so, does not support a final dismissal with prejudice, absent an express provision within the order specifying the deadline and the consequence if timely amendment does not occur”

Establishes the principal legal standard that dismissal with prejudice requires explicit deadline provisions and proof of willful conduct

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Facts & Procedural History

Ms. Hanna-Mack filed a pro se complaint alleging that Bank of America, despite a pending foreclosure action, unlawfully entered her residence in 2011 …

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Opinion of the Court
SALTER, J.

SALTER, J.

Arleen Hanna-Mack, pro se, appeals an amended final order of dismissal with prejudice of her complaint against the appel-lee, Bank of America, N.A. (“Bank”), for trespass, an “illegal. lock out,” conversion of her personal belongings, invasion of privacy, and other allegedly-wrongful acts regarding her personal residence.1 We reverse the order dismissing the complaint with prejudice, and we remand the case to permit Ms. Hack to amend the complaint if she elects to do so.

Our review of this record is de novo regarding the trial court’s dismissal of the initial complaint. In reviewing the legal sufficiency of any cause of action asserted in the complaint, we consider only the four corners of the complaint (there were no attachments). We assume that all factual allegations by Ms. Hanna-Mack are true, and we construe all reasonable inferences from those allegations in her favor. Gogoleva v. Soffer, 187 So.3d 268, 273 (Fla. 3d DCA 2016).

In considering Ms. Hanna-Mack’s failure to file an amended complaint in 36 days after an initial dismissal order (explicitly without prejudice), our review is for an abuse of discretion. However, we have repeatedly held that the failure to amend after a first dismissal, despite leave to do so, does not support a final dismissal with prejudice, absent an express provision within the order specifying the deadline and the consequence if timely amendment does not occur. Kruger v. Kruger, 124 *973So.3d 1033, 1035 (Fla. 3d DCA 2013). There is no showing in this case that the “failure to amend was willful, deliberate, or contumacious.” Id.

Regarding the trial court’s notation on the order of dismissal with prejudice that Ms. Hanna-Mack “failed to appear after proper notice,” the hearing was noticed by the Bank, not by the court. Ms. Hanna-Mack filed a motion for rehearing only seven days after the five-minute motion calendar hearing on the Bank’s motion for the entry of a final order of dismissal. In the motion, Ms. Hanna-Mack set forth exigent circumstances which allegedly precluded her from attending the hearing referred to by the trial court in the order of dismissal with prejudice. This motion, too, was denied, and the trial court declined to reconsider its dismissal with prejudice.2 Ms. Hanna-Mack’s appeal followed.

Ms. Hanna-Mack’s pro se brief argues that the trial court’s refusal to vacate the order of dismissal with prejudice and to allow her to amend was an impermissible sanction under Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993). We need not reach that question, however, as Ms. Hanna-Mack’s conduct was not violative of a court order. The questions before us are the legal sufficiency of her complaint and the denial of her promptly-filed motion for relief from the dismissal with prejudice.

The Bank’s response argues first that Ms. Hanna-Mack failed to provide transcripts of the two motion calendar hearings on the Bank’s motions to dismiss. While there is no transcript of those hearings, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), this is not fatal to appellate review because the errors in the present case are apparent on the face of the record. Hill v. Calderin, 47 So.3d 852, 854 (Fla. 3d DCA 2010).

The Bank also defends the original dismissal of all seven counts alleged in the complaint. Under the de novo standard of review applicable to her complaint, however, several of the counts should have survived the dismissal motion. The Bank maintained that a pending foreclosure action authorized entry to Ms. Hanna-Mack’s residence, but that is not discernible from the four corners of the complaint.3 The allegations of unauthorized entry and conversion of personal property, assumed to be true at this stage, are a legally sufficient basis for relief unless and until the Bank proves otherwise.

Ms. Hanna-Mack is entitled to have her pleadings construed liberally. Montesinos v. State, 143 So.3d 1055, 1056 (Fla. 3d DCA 2014). If a pro se motion is improperly titled, the court should focus on the substance of the motion, based on its content. Suarez v. Orta, 176 So.3d 327, 328 (Fla. 3d DCA 2015). Florida courts emphasize substance over form. Id. Pro se litigants are also afforded leniency on certain procedural technicalities in drafting motions and requesting relief. Kidwell v. Kidwell, 181 So.3d 1190, 1190 (Fla. 3d DCA 2015). This leniency promotes the courts’ fundamental principle of allowing pro se litigants “procedural latitude, a practice effected to ensure access to the courts for all citizens,” id. although pro se litigants are still subject to procedural *974rules.4 Id. Against this background, Ms. Hanna-Mack’s “Motion for Hearing,” filed and served promptly after the dismissal with prejudice, was sufficient to merit relief. It was timely, and it tracked the language of the rule under which she was requesting relief.

For these reasons, we reverse the final order of dismissal with prejudice. We remand for the court to permit Ms. Hanna-Mack to amend her complaint. In the event the Bank seeks dismissal of any such amended complaint, any order of dismissal shall identify those counts determined to be legally insufficient so as to facilitate further review, if sought. We express no opinion regarding the ultimate merits of any such amended complaint or any further rulings by the trial court.

Reversed and remanded for further proceedings.


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  • Del Pino Allen v. Santelises, 240 So. 3d 89 (Fla. 3d DCA 2018)
    …rences in favor of the non-moving party. Id. Pro se pleadings are to be construed liberally, and pro se litigants should be afforded “procedural latitude,” though still subject to applicable procedural rules. See Hanna-Mack v. Bank of Am., N.A., 218 So. 3d 971, 973 (Fla. 3d DCA 2017). Here, though occasionally imprecise, Ms. Pino-Allen’s pro se complaint pled the elements of defamation: (1) publication; (2) falsity; (3) negligence (when the plaintiff is a private person); (4) damages; and (5) the defam…
  • Hanna v. Hemelberg, 49 Fla. L. Weekly D273 (Fla. 3d DCA 2024)
    …a). Thus, the trial court should have treated the Vacatur Motion as an authorized and timely- filed motion under rule 7.180, and then proceeded to adjudicate the motion on its merits. See Metellus, 363 So. 3d at 140; Hanna-Mack v. Bank of Am., N.A., 218 So. 3d 971, 973-74 (Fla. 3d DCA 2017) (“If a pro se motion is improperly titled, the court should focus on the substance of the motion, based on its content. Florida courts emphasize substance over form. Pro se litigants are also afforded leniency on certain p…
  • Rafaelita J. Edwards v. Codrington, 325 So. 3d 993 (Fla. 5th DCA 2021)
    …iting Roach v. Totalbank, 85 So. 3d 574, 578 (Fla. 4th DCA 2012)). We cannot conclude her pro se answer complied with rule 12.140(b)’s plain language. We are mindful that we construe pro se filings liberally. E.g., Hanna- Mack v. Bank of Am., N.A., 218 So. 3d 971, 973 (Fla. 3d DCA 2017). Thus, Edwards could argue that she outlined the grounds through which the trial court lacked personal jurisdiction over her. Indeed, in her pro se answer, she stated that she lived her entire life in Belize, had never been…

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