BOBBY G. POSEY, APPELLANT,
v.
IRENE MAGILL, APPELLEE

Fla. 1st DCA | 1988-08-22
No. 87-851
SHIVERS and ZEHMER, JJ., concur.
530 So. 2d 985 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 4 cases
Topics
Leave To Amend Pleadings Abuse Of Process Malicious Prosecution Abuse Of Discretion

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

Bobby G. Posey, the plaintiff below, appeals a final order dismissing his complaint against appellee and denying him leave to file an amended complaint. We reverse.

Pursuant to Fla.R.Civ.P. 1.190, a party may amend his pleading one time “as a matter of course before a responsive pleading is served.” When Posey’s initial complaint was dismissed he tendered an amended complaint and requested permission to amend, which was denied. The tendered amended complaint states causes of action for malicious prosecution, abuse of process and civil perjury. Unless it is clear from the face of a complaint that amendment would be futile, failure to grant a plaintiff at least one opportunity to amend his complaint constitutes an abuse of discretion. Ayers v. Home Owners Association of Killeam Estates, 360 So. 2d 1326 (Fla. 1st DCA 1978). Accordingly, the denial of leave to amend is reversed and the cause is remanded to the trial court with instructions that Posey be afforded an opportunity to amend his initial complaint as mandated by Fla.R.Civ.P. 1.190.

SHIVERS and ZEHMER, JJ., concur.

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  • Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)
    …plaintiffs an automatic right to amend the complaint once before a responsive pleading is served. See, e.g., Vanderberg v. Rios, 798 So. 2d 806, 807 (Fla. 4th DCA 2001); Fusilier v. Markov, 676 So. 2d 1053, 1054 (Fla. 3d DCA 1996); Posey v. Magill, 530 So. 2d 985, 986 (Fla. 1st DCA 1988); Abston v. Bryan, 519 So. 2d 1125, 1127 (Fla. 5th DCA 1988); Fla. Power & Light Co. v. Sys. Council U—4 of Int’l Bhd. of Elec. Workers, 307 So. 2d 189, 191 (Fla. 4th DCA 1975); Bryant v. Small, 271 So. 2d 808, 809 (Fla. 3d D…
  • Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So. 3d 1081 (Fla. 3d DCA 2014)
    …so W. Kendall Holdings, LLC v. Downrite Eng’g Corp., 112 So. 3d 614, 616 (Fla. 3d DCA 2013) (reversing dismissal with prejudice as “plaintiff is entitled to amend a complaint once as of right before a responsive pleading is filed”); Posey v. Magill, 530 So. 2d 985, 985 (Fla. 1st DCA 1988) (“Unless it is clear from the face of a complaint that amendment would be futile, failure to grant a plaintiff at least one opportunity to amend his complaint constitutes an abuse of discretion”). V. CONCLUSION For the rea…

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