MIAMI AUTO AUCTION, INC., APPELLANT,
v.
FRIENDLY ENTERPRISES, INC., D/B/A WORLD OF CARS AND INTERSTATE FIRE INSURANCE CO., APPELLEES
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Miami Auto Auction sued Friendly Enterprises and Interstate Fire Insurance. After Interstate's motion to dismiss was granted, the trial court gave plaintiff leave to file an amended complaint within ten days, but plaintiff failed to comply and filed 65 days late. The appellate court affirmed the dismissal with prejudice, holding plaintiff waived its right to challenge the original dismissal through its conduct.
Plaintiff properly appealed the May 26 dismissal order and could assign as error the original dismissal order and the order denying its rehearing motion. However, plaintiff was estopped or had waived its right to assert such errors by requesting and receiving written leave to file an amended complaint. The trial court did not abuse its discretion in dismissing the cause with prejudice given plaintiff's 65-day delay in filing the amended complaint.
[1] A party may appeal from a final order of dismissal with prejudice and assign as error the entry of that order, as well as prior orders of dismissal and denial of rehearin…
[2] A party's conduct in requesting and receiving leave to file an amended pleading may estop or waive the party's right to assert error in prior dismissal orders.
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Join FLexlaw to unlock all legal intelligence“plaintiff is estopped, or has waived its right to assert such error by its conduct in orally requesting and receiving written leave to file an amended complaint within ten days from March 12, 1971; or that such error, if any, was cured by the trial court granting plaintiff's oral request to file an amended complaint within ten days of March 12, 1971”
Establishes that plaintiff's own conduct in requesting and receiving leave to amend estopped it from challenging the original dismissal order
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Join FLexlaw to unlock all legal intelligenceMiami Auto Auction sued Friendly Enterprises and Interstate Fire Insurance. A default was entered against Friendly, and Interstate's motion to dismiss…
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Miami Auto Auction, Inc. sued the defendants Friendly Enterprises, Inc. d/b/a World of Cars, and Interstate Fire Insurance Co. A default was entered against Friendly but Interstate filed a motion to dismiss that was granted. By a written order on March 12, 1971, plaintiff’s motion for rehearing to the order of dismissal was denied, however the same order granted *70plaintiff’s oral motion for leave to file an amended pleading within ten days.
Plaintiff did not file an amended complaint within 10 days of March 12, 1971. Interstate moved, on May 6, 1971, for an order of dismissal because of plaintiff’s failure to comply with the March 12 order. On May 26, 1971, an order of dismissal was signed and rendered reciting that “plaintiff has as of the date of this order taken no further steps to file an amended complaint” and the cause was thereupon dismissed with prejudice as to Interstate. Plaintiff filed an amended complaint on May 26, 1971. Apparently the amended complaint was filed after the dismissal order of May 26 had been signed in view of the language contained therein.
Plaintiff appeals from the order of May 26 which dismissed its complaint with prejudice. It assigns as error the order of May 26; the original order which granted Interstate’s motion to dismiss and the order which denied plaintiff’s motion for rehearing.
We first determine that plaintiff could properly appeal from the order of May 26, 1971 which dismissed the cause with prejudice and assign as error the entry of that order and also the entry of the first order of dismissal and the order which denied its petition for rehearing.
Assuming error, arguendo, in the original order dismissing plaintiff’s complaint and in the order denying its motion for rehearing, it is our view that plaintiff is estopped, or has waived its right to assert such error by its conduct in orally requesting and receiving written leave to file an amended complaint within ten days from March 12, 1971; or that such error, if any, was cured by the trial court granting plaintiff’s oral request to file an amended complaint within ten days of March 12, 1971. 2 Fla.Jur. Appeals §§ 311 and 312.
Plaintiff did not file an amended complaint on March 22, 1971, as required, but filed it on May 26, 1971 or approximately 65 days late. We hold that the trial court did not abuse its discretion in dismissing the cause with prejudice under these circumstances. E & E Electric Contractors, Inc. v. Singer, Fla.App.1970, 236 So.2d 195.
The final order of dismissal with prejudice is
Affirmed.
CARROLL, J., concuss in the judgment.
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Citator
Cited By (12 total)
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Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982)…arate notice of the motion for dismissal with prejudice. Singh v. Tolz, 380 So. 2d 1326 (Fla. 4th DCA 1980) (Rule 1.540(b)); Brook v. Protean Investors, Inc., 373 So. 2d 440 (Fla. 3d DCA 1979); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So. 2d 69 (Fla. 3d DCA 1972); Reynolds v. Deep South Sports, Inc., 211 So. 2d 37 (Fla. 2d DCA 1968). We consider as incorrectly decided those cases which either expressly or implicitly uphold an order of dismissal with prejudice absent express notice to the…
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Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. 4th DCA 1978)…. 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 harshness of the sanctions imposed by the trial court, we cannot say that he abused his discr…
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Sekot Labs., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990)…motion for rehearing. Defendants argue that our decision conflicts with Neida’s Boutique, Inc. v. Gabor & Co., 348 So. 2d 1196, 1197 (Fla. 3d DCA 1977), cert. denied, 366 So. 2d 883 (Fla.1978); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So. 2d 69, 70 (Fla. 3d DCA 1972) and E & E Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla. 3d DCA), cert. dismissed, 239 So. 2d 827 (Fla.1970). According to defendants, those decisions hold that the expiration of time beyond the deadline for amendi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- E & E Elec. Contractors, Inc. v. Myron Singer and Eleanor Singer, 236 So. 2d 195 (Fla. 3d DCA 1970)