E & E ELECTRIC CONTRACTORS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MYRON SINGER AND ELEANOR SINGER, HIS WIFE, STANLEY BAUMANN AND PHYLISS BAUMANN, HIS WIFE, INDIVIDUALLY AND D/B/A SIBA, A PARTNERSHIP, MRS. MOLLIE OLIPHANT AND MURRAY OLIPHANT, HER HUSBAND, APPELLEES
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E & E Electric Contractors appealed the trial court's denial of its motion to amend its complaint after missing the deadline by 63 days, and the resulting dismissal with prejudice. The appellate court affirmed, holding that the trial court did not abuse its discretion in denying the late amendment motion and that the dismissal with prejudice was proper under Florida Rules of Civil Procedure.
The trial court did not abuse its discretion in denying the late amendment motion based solely on counsel's mistake and neglect, and the dismissal with prejudice was proper under Rule 1.420(b), Florida Rules of Civil Procedure, as the dismissal for failure to timely amend operates as an adjudication on the merits unless the court specifies otherwise.
[1] A trial court's decision to permit or refuse an amendment to a complaint will not be disturbed on appeal absent an abuse of discretion.
[2] A dismissal for failure to timely amend a complaint operates as an adjudication on the merits unless the court specifies otherwise in its order.
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Join FLexlaw to unlock all legal intelligence“A judge's conclusion to permit or refuse an amendment will not be disturbed in the absence of some demonstration that he has abused his discretion.”
Establishes the standard of review for the trial court's denial of the amendment motion.
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Join FLexlaw to unlock all legal intelligenceE & E Electric Contractors filed a complaint against multiple defendants. Two counts were dismissed with prejudice and a third count was dismissed wit…
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The appellant corporation was plaintiff below, having filed its original complaint against the numerous appellees. Two of the original counts were dismissed with prejudice; the third count was also dismissed, but the court granted the appellant 20 days within which to file an amended complaint pertaining to Count III. The amended complaint was thus due on June 17, 1969. On June 11, 1969, the appellant indicated to the court that it wished to take an interlocutory appeal from the above orders. Oral motion was made and, pursuant thereto, the court set a supersedeas bond. However, the appellant did not post a su-persedeas bond, but did file its notice of interlocutory appeal with this court.
The interlocutory appeal was never perfected because the appellant did not file its assignments of error, and failed in other respects to comply with the applicable appellate rules. Subsequently, on August 21, 1969, pursuant to motions of the appellees, this court dismissed the appellant’s appeal. E & E Electric Contractors, Inc. v. Baumann, Fla.App., 226 So.2d 288.
The appellants still attempted to file their amended complaint in circuit court. On August 19, 1969, which was 63 days after the expiration of the original 20 day period granted to the appellant to amend Count III of its complaint, the appellees moved for final judgment and dismissal of the case with prejudice, on the grounds that the appellant had failed to file an amended complaint within the time allowed therefor. The appellants responded by filing their motion for leave to file and serve an amended complaint, and requested that the court excuse the default. An affidavit attached to that motion stated that the failure to timely file the amended complaint was “due to the inadvertence and apparent neglect on the part of the attorneys for the plaintiff, or that attorney having direct responsibility in this case * * * A hearing was held on the two motions, and on September 8, 1969, the court entered its order denying plaintiff’s motion for leave to amend its complaint, and also entered its final judgment for the defendants-appel-lees, dismissing the complaint with prejudice. This appeal is directed to those orders.
The issue is whether or not the trial court abused its discretion in denying *197plaintiff’s motion for leave to amend its complaint at a time which was sixty-three days after the original period allotted for that amended complaint to have been filed. A judge’s conclusion to permit or refuse an amendment will not be disturbed in the absence of some demonstration that he has abused his discretion. McSwiggan v. Edson, Fla.1966, 186 So.2d 13; Houston Texas Gas and Oil Corp. v. Hoeffner, Fla.App.1961, 132 So.2d 38.
This court has been confronted with fact situations nearly identical to the case at bar. In Sun Finance Corp. v. Friend, Fla.App.1962, 139 So.2d 484, we concluded that it was an abuse of discretion for the trial court to have set aside a default judgment, such setting aside having been based solely upon a motion and affidavit setting forth mistake and/or neglect of counsel. See also, White v. Spears, Fla.App.1960, 123 So.2d 689.
As its second point on appeal, the appellant argues that the court was not justified when it dismissed the cause with prejudice. Rule 1.420(b), Florida Rules of Civil Procedure, 30 F.S.A., provides that
“[Ujnless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable 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.
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Citator
Cited By (17 total)
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Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)…da law if notice has been given to a plaintiff as required by Rule 1.420(b), the trial court has the authority to dismiss with prejudice the complaint of that party for failure to timely amend.2 See, e.g., E & E Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla. 3d DCA 1970), cert. dismissed, 239 So. 2d 827 (Fla.1970) (not addressing issue but implying that plaintiffs had separate notice of motion for final judgment and dismissal with prejudice); Clifford Ragsdale, Inc. v. Morganti, Inc., supra at n.2…
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NEW River Yachting Ctr., Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981)…rule has been applied to uphold the trial court’s discretion in dismissing for failure to amend a pleading within the time limit set by the court. Lasley v. Cushing, 244 So. 2d 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.…
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Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. 4th DCA 1978)….P. 1.420(b)1. The dismissal in the instant case falls within the parameter of the present rule. In the absence of an abuse of discretion, the trial court’s dismissal with prejudice will not be disturbed. E & E Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla. 3d DCA 1970); and Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So. 2d 69 (Fla. 3d DCA 1972). See also, Lutheran Senior Citizens’ Foundation, Inc. v. B. F. Schumacher, 355 So. 2d 861 (Fla. 3d DCA 1978). In full recognition of the…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Angell M. White and Anna White v. Spears, 123 So. 2d 689 (Fla. 3d DCA 1960)
- Houston Tex. GAS & OIL Corp. v. Hoeffner, 132 So. 2d 38 (Fla. 2d DCA 1961)
- Drady v. Hillsborough Cnty. Aviation Auth., 193 So. 2d 201 (Fla. 2d DCA 1966)
- McSWIGGAN v. Murray Edson, 186 So. 2d 13 (Fla. 1966)
- The Nat'l Shawmut Bank OF Boston v. Woodard, 220 So. 2d 636 (Fla. 3d DCA 1969)
- Malloy v. Chambers, 139 So. 2d 484 (Fla. 2d DCA 1962)
- SUN Fin. Corp. v. Friend, 139 So. 2d 484 (Fla. 3d DCA 1962)
- Pearson v. State, 226 So. 2d 288 (Fla. 3d DCA 1969)
- E & E Elec. Contractors, Inc. v. Baumann, 226 So. 2d 288 (Fla. 3d DCA 1969)