WINCHESTER CORPORATION, APPELLANT,
v.
MIAMI FREE ZONE CORPORATION, APPELLEE
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Appellate court affirmed dismissal of tortious interference count but reversed dismissal of breach of contract and fraud counts, requiring leave to amend rather than dismissal with prejudice.
A trial court must grant leave to amend when dismissing counts for failure to state a cause of action unless the deficiencies are incurable, but may dismiss without leave only when defects cannot be remedied.
[1] When a trial court dismisses a pleading for failure to state a cause of action, leave to amend must be granted unless the deficiencies in the pleading are incurable as a…
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Join FLexlaw to unlock all legal intelligenceWinchester Corporation, a tenant, filed a second amended counterclaim against Miami Free Zone Corporation, its landlord, alleging breach of lease obli…
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PER CURIAM.
This is an appeal by defendant/counter-claimant from an order dismissing its three-count second amended counterclaim, without leave to amend.
The first count of the second amended counterclaim alleged that the appellee, landlord, breached a number of obligations which appellee allegedly owed to appellant, tenant. It was further asserted that the alleged breach of appellee’s obligations caused appellee to become unjustly enriched. Count two alleged tortious interference with appellant’s contractual and business relationships with its subtenants. Count three was based on alleged misrepresentation and fraud in the inducement to appellant’s execution of the lease agreements.
It is appellant’s contention that the trial court erred in dismissing its counterclaim for failure to state a cause of action and in refusing to allow appellant leave to amend.
We find no error in the court’s dismissal with prejudice of the second count of the second amended counterclaim for failure to state a cause of action since it is clear that the deficiencies in this count cannot be cured. However, the dismissal as to counts one and three should have been entered with leave to amend. Winfield v. Noe, 426 So. 2d 1148 (Fla. 3d DCA 1983); Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So. 2d 679 (Fla. 1st DCA 1982); Wiggins v. Tart, 407 So. 2d 1094 (Fla. 1st DCA 1982); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So. 2d 90 (Fla. 2d DCA 1980).
Affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.
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Cited By
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Tiedeman v. City OF Miami, 529 So. 2d 1266 (Fla. 3d DCA 1988)…1979); and (b) it was plain on this record that the plaintiffs could not by amendment have possibly shown any standing to bring this lawsuit. See Mhoon v. Singleton, 503 So. 2d 374, 375 (Fla. 1st DCA 1987); Winchester Corp. v. Miami Free Zone Corp., 443 So. 2d 1064 (Fla. 3d DCA 1984); see also Dade County Police Benevolent Ass’n v. Metropolitan Dade County, 452 So. 2d 6, 10 (Fla. 3d DCA 1984) (on rehearing), rev. denied, 461 So. 2d 114 (Fla.1985). The final order which awards attorney’s fees to the defendant…
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DeMOYA v. Mosely, 525 So. 2d 1012 (Fla. 3d DCA 1988)…3); Mosely v. DeMoya, 497 So. 2d 696 (Fla. 3d DCA 1986); United of Omaha Life Insurance Company v. Nob Hill Associates, 450 So. 2d 536 (Fla. 3d DCA 1984), cert denied, 458 So. 2d 274 (Fla.1984); Winchester Corporation v. Miami Free Zone Corporation, 443 So. 2d 1064 (Fla. 3d DCA 1984); Buckner v. Lower Florida Keys Hospital District, 403 So. 2d 1025 (Fla. 3d DCA 1981); Ethyl Corp. v. Balter, 386 So. 2d 1220 (Fla. 3d DCA 1980); cert. denied, 392 So. 2d 1371 (Fla.1981); Catania v. Eastern Airlines, Inc., 381 So.…
Authorities Cited
- Affordable Homes, Inc. v. Devil's RUN, 408 So. 2d 679 (Fla. 1st DCA 1982)
- Highlands Cnty. Sch. Bd. v. K. D. Hedin Constr., Inc., 382 So. 2d 90 (Fla. 2d DCA 1980)
- Wiggins v. Tart, 407 So. 2d 1094 (Fla. 1st DCA 1982)
- Winfield v. NOE, 426 So. 2d 1148 (Fla. 3d DCA 1983)