THE NATIONAL SHAWMUT BANK OF BOSTON, A UNITED STATES BANKING CORPORATION, AS EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF RUSSELL T. HAMLET, DECEASED, APPELLANT,
v.
PATRICIA WOODARD, A SINGLE WOMAN, APPELLEE
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A bank serving as executor of an estate sought to establish a resulting trust but failed to timely amend its complaint after two dismissal orders. The key issue was whether filing an interlocutory appeal tolled the deadline for amending the complaint, thereby preserving the plaintiff's right to file a further amended pleading after appellate affirmance.
An interlocutory appeal filed without a supersedeas does not stay or toll the trial court's order requiring amendment within a specified deadline. The affirmance of the dismissal order does not revive or create a new period for amending the complaint.
“the taking of the interlocutory appeal without supersedeas did not operate to stay the order which had been entered requiring an amendment, if made, to be filed within 15 days”
The court's holding that filing an interlocutory appeal does not toll the amendment deadline.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a complaint to establish a resulting trust on January 16, 1967. The trial court granted a motion to dismiss with leave to amend wi…
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On January 16, 1967, appellant filed a complaint in the circuit court of Dade County to establish a resulting trust. The appellee, the defendant below, moved to dismiss for failure to state a cause of action and on other grounds. The motion was granted, with leave to amend within 15 days. An amended complaint was timely filed. On January 9, 1968, a motion of the defendant to dismiss the amended complaint was granted. That order allowed plaintiff to further amend within 15 days and provided that upon failure to so amend “the cause should stand dismissed, with prejudice”.
Plaintiff did not amend within the time thus allowed, but within that period filed an interlocutory appeal from the last mentioned order. This court affirmed, on April 23, 1968 (209 So.2d 272).
Thereafter the defendant moved for entry of final judgment, pursuant to the terms of the order which had been appealed and affirmed, for the failure of the plaintiff to have amended within 15 days from the date of said order as authorized therein. On June 15, 1968, the trial court granted the motion, and dismissed the cause with prejudice. Plaintiff’s subsequent motions to vacate the final judgment of dismissal and for rehearing were denied, and the plaintiff filed notice of appeal from the judgment of dismissal and the subsequent orders.
The question presented for determination is whether the filing by the plaintiff of an interlocutory appeal 'from the order dismissing the first amended complaint, within the 15-day period allowed by such order to further amend the complaint, operated to toll or suspend the period for amending so as to entitle the plaintiff to file an amended complaint within 15 days after the disposition by the appellate court of the interlocutory appeal.
The appellee contends, as the trial court ruled, that the taking of the interlocutory appeal without supersedeas did not operate to stay the order which had been entered requiring an amendment, if made, to be filed within 15 days. We hold the trial judge was eminently correct in so ruling. See Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126, 129-130; Crichlow v. Maryland Casualty Co., 116 Fla. 226, 156 So. 440, 443; Horn v. Horn, Fla.1954, 73 So.2d 905, 906.
The appellant argues that affirmance of the order revived the period allowed to amend, affording a new period of 15 days for that purpose. That result would require a rule of procedure to that effect, and we have been shown no such rule applicable to this case.
Affirmed.
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Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)…Fenner and Smith, Inc., supra. This is distinguished from the situation where an order of dismissal with leave to amend expressly provides that failure to amend will result in dismissal with prejudice. See National Shawmut Bank of Boston v. Woodard, 220 So. 2d 636 (Fla. 3d DCA 1969), cert. denied, 225 So. 2d 917 (Fla.1969); Stevens v. Metropolitan, Dade County, 164 So. 2d 273 (Fla. 3d DCA 1964). Second, a holding that opportunity for argument on a motion for rehearing is sufficient to protect a plaintiff’s r…
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NEW River Yachting Ctr., Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981)…d 770 (Fla. 1st D.C.A. 1971), E & E Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla. 3rd D.C.A. 1970), Miami Auto Auction Inc. v. Friendly Enterprises, Inc., 251 So. 2d 69 (Fla. 3rd D.C.A. 1972), National Shawmut Bank of Boston v. Woodard, 220 So. 2d 636 (Fla. 3rd D.C.A. 1969). We find that the application of Fla. R.Civ.P. 1.420(b) in this case was solely within the sound discretion of the trial court and nothing appears from the record to suggest that there was an abuse of that discretion. Appell…
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E & E Elec. Contractors, Inc. v. Myron Singer and Eleanor Singer, 236 So. 2d 195 (Fla. 3d DCA 1970)…able party, operates as an adjudication on the merits.” Thus, this dismissal for failure to timely amend may, unless otherwise provided by the trial court, act as a dismissal with prejudice. National Shawmut Bank of Boston v. Woodard, Fla.App.1969, 220 So. 2d 636. Cf. Drady v. Hillsborough County Aviation Authority, Fla.App.1966, 193 So. 2d 201. The orders being appealed are therefore affirmed.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Willey v. W. J. Hoggson Corp., 89 Fla. 446 (Fla. 1925)
- Shuron Hester v. State, 312 So. 3d 173 (Fla. 1st DCA 2021)
- Horn v. Horn, 73 So. 2d 905 (Fla. 1954)
- Crichlow v. Md. Cas. Co., 116 Fla. 226 (Fla. 1933)
- The Nat'l Shawmut Bank OF Boston v. Woodward, 209 So. 2d 272 (Fla. 3d DCA 1968)