THE ESTATE OF JUSTINA MARIE TATUM AND CARISSA MARIE TATUM, AS PERSONAL REPRESENTATIVE

v.

CLEAR WATER CARE AND REHABILITATION CENTER, L L C, ET AL

KHOUZAM, Judge. In this nursing home lawsuit, Plaintiffs The Estate of Justina Marie Tatum and Carissa Marie Tatum as personal representative appeal an order dismissing with prejudice counts VI, VIII, and IX of their amended complaint against several Defendants (Bethamy Living Center LP; Lyric Health Care Holdings III, Inc. n/k/a Lyric Health Care Holdings III, LLC; Lyric Health Care, LLC; Lyric HC Operations Acquisition, LLC; John Dwyer; and Timothy F. Nicholson) and entering judgment for those defendants.

We affirm the dismissal of the claims without comment. But because the dismissal should have been without prejudice, we reverse in part and remand with directions to grant leave to amend. Florida Rule of Civil Procedure 1.190(a) provides in relevant part that leave to amend pleadings "shall be given freely when justice so requires." This reflects "the policy in Florida . . . to allow amendments to pleadings liberally." Pangea Produce Distribs., Inc. v. Franco's Produce, Inc., 275 So. 3d 240, 242 (Fla. 3d DCA 2019); see also Laurencio v. Deutsche Bank Nat'l. Tr. Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) ("Public policy favors the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit." (citing S. Devs. & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56, 62 (Fla. 2d DCA 2011))).

Consequently, Florida law is well settled that "[a] dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action." Kapley v. Borchers, 714 So. 2d 1217, 1218 (Fla. 2d DCA 1998) (first citing Countryside Christian Ctr., Inc. v. City of Clearwater, 542 So. 2d 1037 (Fla. 2d DCA 1989); and then citing Cent. Fla. Inv., Inc. v. Levin, 659 So. 2d 492 (Fla. 5th DCA 1995)). "Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion." Id. (first citing

Harper Cos. v. Scott, Royce, Harris, Bryan, Barra, & Jorgensen, P.A., 656 So. 2d 627 (Fla. 4th DCA 1995); and then citing Kovach v. McLellan, 564 So. 2d 274 (Fla. 5th DCA 1990)).

Here, the court considered these claims against these defendants for the first time. Nothing suggests that the amendment privilege has been abused or that amendment would be prejudicial; indeed, Appellees do not even assert either as a basis to affirm. Instead, Appellees contend only1 that amendment would be futile, relying primarily on the fact that this court issued a per curiam affirmance without opinion of the dismissal of two of the same claims against other defendants in Tatum v. FC Lending-Sunshine, LLC, 322 So. 3d 641 (Fla. 2d DCA 2021).

But for multiple reasons, the same result is not compelled here. As a threshold matter, "a per curiam appellate court decision with no written opinion" lacks "any precedential value." Dep't of Legal Affairs v. Dist. Ct. of Appeal, 5th Dist., 434 So. 2d 310, 311 (Fla. 1983).

Although it is not improper to cite a court's own per curiam affirmance as persuasive authority, "such a decision is not a 1 Appellees also imply that the request for leave to amend was not preserved.

We reject that suggestion as contrary to the record.

precedent for a principle of law and should not be relied upon for anything other than res judicata." Id. at 313.

It follows that "a court may take the view that it desires not to consider such cases in any circumstance, and it may properly disregard such a reference in briefs or arguments presented to it." Id. Further, these two appeals present materially different questions. Procedurally, the record here reveals that, unlike this case, in the earlier appeal the claims had already been dismissed twice against those other defendants. In addition, that earlier appeal addressed only two claims (aiding and abetting breach of fiduciary duty and civil conspiracy), whereas this appeal also involves a third claim (negligent selection of operator) that has only now been dismissed for the first time. More important, the different defendants in the earlier case were alleged to have participated in the claims in significantly different ways: there, the defendants were banking institutions who provided financing for a sale transaction, versus here, the defendants are prior owners of a facility who were alleged to have a relationship with the subsequent purchaser. This court's per curiam affirmance without opinion of a dismissal with prejudice of only a subset of the instant claims—against different defendants alleged to have had materially different roles in the case—does not require the same outcome here. At bottom, although these are novel claims, we are not convinced that amendment would be futile as a matter of law. Rather, under Florida's settled policy of liberal amendment in favor of decisions on the merits, these plaintiffs should have received at least one opportunity to attempt to modify these allegations against these defendants now that they have been tested for the first time. See Eagletech Commc'ns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 866 (Fla. 4th DCA 2012) ("[T]rial courts must generally afford a litigant an opportunity to cure a defect in the pleading before dismissing it with prejudice." (alteration in original) (quoting Horton v. Freeman, 917 So. 2d 1064, 1066 (Fla. 4th DCA 2006))).

We accordingly affirm the dismissal of these three claims but reverse the denial of leave to amend. See, e.g., Kapley, 714 So. 2d at 1218 ("While it may have been proper to dismiss the complaint against appellee . . . we conclude it was an abuse of discretion to do so with prejudice since it was not clear from the record that a cause of action could never be alleged against appellee . . . ."); Pangea,

275 So. 3d at 242 (reversing order denying leave to file third amended complaint in the absence of prejudice, abuse, or futility). Reversed in part; remanded with instructions. KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur. __________________________ Opinion subject to revision prior to official publication.