TURNBERRY VILLAGE NORTH TOWER CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
TURNBERRY VILLAGE SOUTH TOWER CONDOMINIUM ASSOCIATION, INC., APPELLEE
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The Third District Court of Appeal affirmed the trial court's dismissal with prejudice of a condominium association's amended complaint alleging aiding and abetting breach of fiduciary duty, holding that the complaint contained only conclusory allegations insufficient to survive a motion to dismiss.
The court affirmed the dismissal because the amended complaint failed to set forth a short and plain statement of ultimate facts, containing only conclusory allegations that the appellee substantially assisted or encouraged wrongdoing. The court further held that the appellant was not entitled to a further opportunity to amend because it had already exercised its one statutory right to amend and failed to seek leave from the trial court for additional amendments.
[1] A complaint asserting a claim for aiding and abetting a breach of fiduciary duty must plead ultimate facts demonstrating the elements of the cause of action, including su…
[2] A plaintiff is generally permitted to amend a complaint once as a matter of course before a responsive pleading is filed.
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Join FLexlaw to unlock all legal intelligence“Appellant's amended complaint contained a mechanical recitation of the elements of the cause of action, and, in particular, only conclusory allegations that appellee substantially assisted or encouraged the wrongdoing. This is insufficient to withstand a motion to dismiss.”
Establishes the standard for dismissal—conclusory allegations without ultimate facts are insufficient.
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Join FLexlaw to unlock all legal intelligenceTurnberry Village North Tower Condominium Association filed an original complaint against Turnberry Village South Tower Condominium Association. After…
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Appellant, Turnberry Village North Tower Condominium Association, Inc. appeals from an order dismissing, with prejudice, its amended complaint, which asserted a claim for aiding and abetting a breach of fiduciary duty.1 We affirm the -trial court’s order, as appellant’s amended complaint failed to set forth “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See Fla. R. Civ. P. 1.110(b). Appellant’s amended complaint contained a mechanical recitation of the elements of the cause of action, and, in particular, only conclusory allegations that appellee substantially assisted or encouraged the wrongdoing. This is insufficient to withstand a motion to dismiss. See generally, American Seafood, Inc. v. Clawson, 598 So.2d 273 (Fla. 3d DCA 1992); Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So.2d 843 (Fla. 2d DCA 1986).
We reject appellant’s alternative argument that, even if the order of dismissal was proper, we should reverse and remand to permit appellant a further opportunity to amend the amended complaint. A plaintiff is granted the right to amend the complaint once before a responsive pleading is filed. See Fla. R. Civ. P. 1.190(a) (providing that a party may amend a pleading once as a matter of course at any time before a responsive pleading is served); Boca Burger, Inc. v. Forum, 912 *268So.2d 561, 567 (Fla. 2005) (holding that a judge’s discretion to deny amendment of a complaint arises only after the defendant files a responsive pleading or if the plaintiff has already exercised the right to amend once).
Appellant already exercised this right to amend when, following a dismissal of the original complaint, it filed an amended complaint. Any further amendment required leave of the trial court. Because appellant did not seek leave to amend at the time of the trial court’s dismissal with prejudice of the amended complaint, or thereafter by a motion for rehearing, Appellant has failed to preserve the issue, precluding our consideration of the issue for the first time on appeal. Vorbeck v. Betancourt, 107 So.3d 1142, 1148 (Fla. 3d DCA 2012); Century 21 Admiral’s Port, Inc. v. Walker, 471 So.2d 544, 545 (Fla. 3d DCA 1985); Stander v. Dispoz-O-Products, Inc., 973 So.2d 603, 605 (Fla. 4th DCA 2008).
Affirmed.
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Guarino v. Mandel, 327 So. 3d 853 (Fla. 4th DCA 2021)…aider and abettor’s substantial assistance or encouragement of the wrongdoing.” Grape Leaf Cap., Inc. v. Lafontant, 316 So. 3d 760, 761 n.2 (Fla. 3d DCA 2021); see also Turnberry Vill. N. Tower Condo. Ass’n v. Turnberry Vill. S. Tower Condo. Ass’n, 224 So. 3d 266, 267 n.1 (Fla. 3d DCA 2017). To that end, appellees alleged that the Arizona law firm and one of its attorneys (a California resident) knew that several other defendants— including Shabanets—owed fiduciary duties to appellees 8 Speed 8 (an alleged…
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THE Alfi A. Shahid & Patricia Allan-Shahid Fam. Tr. v. Lonny Shane Miller and Jacqueline Miller (Fla. 5th DCA 2023)…e, of BLC Law, Melbourne, for Appellant. Jay R. Thakkar, of Goldman, Monaghan, Thakkar & Bettin, P.A., Cocoa, for Appellees. PER CURIAM. ---PAGE 2--- AFFIRMED. See Turnberry Vill. N. Tower Condo. Ass’n v. Turnberry Vill. S. Tower Condo. Ass’n, 224 So. 3d 266, 268 (Fla. 3d DCA 2017) (“Because appellant did not seek leave to amend at the time of the trial court’s dismissal with prejudice of the amended complaint, or thereafter by a motion for rehearing, Appellant has failed to preserve the issue, precl…
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Sundby v. Marks (Fla. 3d DCA 2025)…While we must accept the facts alleged as true and make all reasonable inferences in favor of the pleader . . . conclusory allegations are insufficient.”); Turnberry Vill. N. Tower Condo. Ass’n, Inc. v. Turnberry Vill. S. Tower Condo. Ass’n, Inc., 224 So. 3d 266, 267 (Fla. 3d DCA 2017) (“Appellant . . . appeals from an order dismissing, with prejudice, its amended complaint, which asserted a claim for . . . a breach of fiduciary duty. We affirm the trial court’s order, as appellant’s amended complaint fail…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)
- Vorbeck v. Betancourt, 107 So. 3d 1142 (Fla. 3d DCA 2012)
- Century 21 Admiral's Port, Inc. v. Walker, 471 So. 2d 544 (Fla. 3d DCA 1985)
- Raymond v. Zumstorchen Inv., Ltd., 488 So. 2d 843 (Fla. 2d DCA 1986)
- Stander v. Dispoz-O-Products, Inc., 973 So. 2d 603 (Fla. 4th DCA 2008)
- Am. Seafood, Inc. v. Clawson, 598 So. 2d 273 (Fla. 3d DCA 1992)
- Maricela Fonseca and Richard Fonseca v. Taverna Imports, Inc., 212 So. 3d 431 (Fla. 3d DCA 2017)