KIRSTEN HUNTER, SHARON KENNEDY AND ANGELA LONG, APPELLANTS,
v.
MILTON MONTALVO, APPELLEE

Fla. 3d DCA | 1995-10-05
No. 94-2497
Before BASKIN, JORGENSON and GREEN, JJ.
661 So. 2d 123 Florida District Court of Appeal, Third District (1995)

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Holding

The court held that while dismissal was appropriate, dismissal with prejudice for failure to amend was an abuse of discretion.


Facts & Procedural History

Appellants' complaint was dismissed with prejudice after they refused to amend it, despite being granted leave to do so twice.…

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Opinion of the Court

PER CURIAM.

We have before us a final order dismissing a complaint with prejudice entered by the trial court after appellants steadfastly refused to amend their complaint, although given leave to do so on two prior occasions by the court below. Having reviewed the record of the truly unusual proceedings below, we can certainly understand the perceived frustration on the part of the trial judge. Nevertheless, while we affirm the trial court’s dismissal of the complaint, we must find that the dismissal with prejudice for failure to amend was an abuse of discretion. Sekot Lab., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990) (on motion for rehearing). As this court has said:

[A]n order of dismissal “with leave to amend is not an order of the court to amend. It is permission to do that which without the court’s permission would not be allowable. Failure to amend after being given leave to amend is not disobedience of a court order, but is merely a continuing failure to state a cause of action.” It is, in other words, a failure to prosecute: the quintessential dismissal without prejudice.

Sekot, 585 So. 2d at 289 (emphasis omitted) (citation omitted) (quoting .Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51, 54 (Fla. 3d DCA), rev. denied, 424 So. 2d 763 (Fla.1982)). Thus, we affirm the dismissal but strike all portions of the order which state that the dismissal is with prejudice.

Affirmed in part and reversed in part.


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