FRANCIS J. JANKO, ON BEHALF OF HIMSELF AND ALL OTHER RESIDENTS OR PROPERTY OWNERS IN THE CITY OF HIALEAH SIMILARLY SITUATED, APPELLANT,
v.
CITY OF HIALEAH, APPELLEE
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A property owner challenged the dismissal of his class action complaint seeking to invalidate a city rezoning ordinance. The court affirmed the dismissal for failure to allege special damages but reversed the denial of leave to amend, holding that amendment should be freely granted unless abuse is shown.
Plaintiff must allege special damages peculiar to himself that differ in kind from damages suffered by the community as a whole to maintain such a challenge. The dismissal was proper, but the trial court erred in dismissing with prejudice and denying leave to amend, as amendment should be freely granted absent abuse of that privilege.
“plaintiff has failed to allege special damages peculiar to himself different in kind from that suffered by the community as a whole”
The lower court's basis for dismissal, establishing the special damages requirement
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Join FLexlaw to unlock all legal intelligenceFrancis J. Janko, on behalf of himself and similarly situated residents and property owners in Hialeah, filed suit to invalidate the rezoning of prope…
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This is an appeal by the plaintiff below, Francis J. Janko, from an order dismissing with prejudice plaintiffs original complaint against the City of Hialeah. Janko, on behalf of himself and all others similarly situated, sought to invalidate the rezoning of certain property located near or adjacent to property owned by Janko and the members of the class. The chancellor entered the following order:
“THIS CAUSE having come on to be heard on Thursday, March 28th, 1968, upon defendant’s motion to dismiss the complaint heretofore filed in this cause, and after hearing argument of counsel for the respective parties hereto, and being otherwise advised in the premises, the Court finds that plaintiff has failed to allege special damages peculiar to himself different in kind from that suffered by the community as a whole, and that plaintiff’s complaint is not amendable to show such special damages, it is, therefore,
Ordered, Adjudged And Decreed, that plaintiff’s complaint be and the same is hereby dismissed with prejudice * * *»
The order then cites as authority the cases of Boucher v. Novotny, Fla.1958, 102 So.2d 132, and S. A. Lynch Investment Corporation v. City of Miami, Fla.App.1963, 151 So.2d 858, which cases, we agree, require that plaintiff allege special damages. The chancellor was correct in dismissing the complaint.
However, we are of the opinion that plaintiff should have been given the opportunity to amend. The court in Petterson v. Concrete Construction, Inc., Fla.App. 1967, 202 So.2d 191, states at page 197:
“This court is committed to the view that leave to amend should be freely given * * *.
“Granting leave to amend rests in the sound discretion of the trial court but *801doubts should be resolved in favor of allowing amendment unless and until it appears that the privilege to amend has been abused. [Citations omitted.] This is true even though the trial judge is of the opinion that the proffered amendments will not result in the statement of a cause of action. Slavin v. McCann Plumbing Co., Fla.1954, 73 So.2d 902; Town of Coreytown v. State ex rel. Ervin, Fla.1952, 60 So.2d 482, 487, and cases therein cited.”
See also: Richards v. West, Fla.App.1959, 110 So.2d 698; Rule 1.190, Florida Rules of Civil Procedure, 30 F.S.A.
Therefore, on the basis of the foregoing, the order of the lower court dismissing appellant’s complaint is affirmed, but that portion of the order denying appellant leave to amend is reversed.
Affirmed in part, reversed in part.
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Gold Coast Crane Serv., Inc. v. Watier, 257 So. 2d 249 (Fla. 1971)…rules that amendments to pleadings be liberally allowed in the interest of justice, so that the merits of the case may be reached for adjudication whenever possible. See Conklin v. Smith, 191 So. 2d 311 (1st DCA Fla.1966) ; Janko v. City of Hialeah, 212 So. 2d 800 (3d DCA Fla.1968). In Roberts v. Braynon, 90 So. 2d 623 (Fla.1956), this Court found that the record did not preclude all possibility of a showing of a cause of action. Therefore, the summary judgment was affirmed, but the affirmance was without pr…
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Fla. Palm-Aire Corp. v. Delvin, 230 So. 2d 26 (Fla. 4th DCA 1969)…Miami, Fla. App.1959, 113 So. 2d 849. . S. A. Lynch Investment Corporation v. City of Miami, Fla.App.1963, 151 So. 2d 858 (cert. den. 155 So. 2d 695). . McGee v. City of Cocoa, Fla.App.1964, 168 So. 2d 766; Janko v. City of Hialeah, Fla.App.1968, 212 So. 2d 800; Sunset Islands 3 & 4 Ass’n v. City of Miami Beach, Fla.App.1968, 214 So. 2d 45. . S. A. Lynch Investment Corporation v. City of Miami, Fla.App.1963, 151 So. 2d 858 (cert. den. 155 So. 2d 695). . Harvey Building, Inc. v. Haley, Fla. 1965, 175 So.…
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Mount Sinai Hosp. OF Greater Miami, Inc. v. Cordis Corp., 285 So. 2d 645 (Fla. 3d DCA 1973)…t is the policy of our rules of procedure to liberally permit amendments to pleading in the interest of justice so that the merits of a case may be considered. Conklin v. Smith, Fla.App. 1966, 191 So. 2d 311; Janko v. City of Hialeah, Fla.App. 1968, 212 So. 2d 800. Our Supreme Court has held that even upon entry of summary judgment, amendments to the pleadings should be allowed if there are reasonable indications in the record that a justifiable issue can be made upon amendment to conform to those facts appea…
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
- Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959)
- Grover v. VAN Heusden, 102 So. 2d 132 (Fla. 1958)
- Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958)
- Conyers v. State, 202 So. 2d 191 (Fla. 1st DCA 1967)
- Town of Coreytown v. State Ex Rel. Ervin, 60 So.2d 482 (Fla. 1952)
- Slavin v. McCann Plumbing Co., 73 So. 2d 902 (Fla. 1954)
- S. A. Lynch Inv. Corp. v. City OF Miami, 151 So. 2d 858 (Fla. 3d DCA 1963)