GULF SOUTH REO, LLC
v.
WILSON ANDREW GARRETT, GULF SOUTH REO HOLDINGS, LLC, SEAN COUCH, ERIC MATTHEW COUCH, PHIL COUCH, SHEILA COUCH, AND BENJAMIN CROMER
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A plaintiff has an absolute right to amend its complaint once as a matter of course before a responsive pleading is served, even if the amendment would be futile, and dismissal with prejudice that deprives the plaintiff of this right is error.
[1] A plaintiff has an absolute right to amend a pleading once as a matter of course before a responsive pleading is served under Florida Rule of Civil Procedure 1.190(a), an…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This [absolute right to amend] is true even if the amendment of the complaint would be futile.”
The court cited Barr v. MS Int'l, Inc. to establish that the absolute right to amend exists regardless of whether the amendment would ultimately succeed.
Gulf South REO, LLC filed a fifteen-count complaint against multiple defendants in 2025 alleging conduct occurring in 2018. The trial court dismissed …
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SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 6D2025-2267 Lower Tribunal No. 2025-CA-002807
GULF SOUTH REO, LLC, Appellant,
V.
WILSON ANDREW GARRETT, GULF SOUTH REO HOLDINGS, LLC, SEAN COUCH, ERIC MATTHEW COUCH, PHIL COUCH, SHEILA COUCH, and BENJAMIN CROMER, Appellees.
Appeal from the Circuit Court for Lee County. Michael T. McHugh, Judge.
October 23, 2026
WOZNIAK, J.
Appellant Gulf South REO, LLC appeals the order dismissing with prejudice its complaint against Appellees Wilson Andrew Garrett, Gulf South REO Holdings, LLC, Sean Couch, Eric Matthew Couch, Phil Couch, and Sheila Couch as timebarred under the applicable statutes of limitations. The trial court found that, according to the allegations of the fifteen-count complaint, the most recent conduct that could potentially form the basis of Appellant's claims occurred in 2018, and thus the applicable statutes of limitations barred the suit, which was filed in 2025. Appellant argues that the dismissal with prejudice was error because the trial court failed to give it an opportunity to amend its complaint, contrary to Florida Rule of Civil Procedure 1.190(a) (“A party may amend a pleading once as a matter of course at any time before a responsive pleading is served . . . ."). We agree.
Because no responsive pleading had been filed by Appellees and this was Appellant's first amendment of its complaint,¹ Appellant was not required to file a motion to amend its complaint but rather had the absolute right to do so. See Fla. R. Civ. P. 1.190(a); Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005) ("Under the plain language of the first sentence of [Florida Rule of Civil Procedure] 1.190(a), a plaintiff has an absolute right to amend the complaint before a responsive pleading is served.”). “This [absolute right to amend] is true even if the amendment of the complaint would be futile.” Barr v. MS Int'l, Inc., 410 So. 3d 1219, 1222 (Fla. 4th DCA 2025) (emphasis omitted). Because the dismissal with prejudice acted to deprive Appellant of its absolute right to amend, the trial court erred in dismissing Appellant's complaint with prejudice. We express no opinion as to the merits of any amendment.
REVERSED and REMANDED for further proceedings.
1 Appellees sought to resolve the suit prior to filing an answer by bringing the statutes of limitations argument before the court on a motion to dismiss. A motion to dismiss is not a pleading. Arnold v. Arnold Fam. Ltd. P'ship, 326 So. 3d 759, 760 (Fla. 2d DCA 2021).
WHITE and BROWNLEE, JJ., concur.
Carlos F. Gonzalez, of Carlos F. Gonzalez, P.A., South Miami, for Appellant.
Jack C. Morgan, of GrayRobinson, P.A., Fort Myers, for Appellees, Wilson Andrew Garrett, and Gulf South REO Holdings, LLC.
James S. Telepman, of Cohen, Norris, Wolmer, Ray, Telepman, Berkowitz & Cohen, North Palm Beach, for Appellees, Phil Couch, Sheila Couch, Sean Couch, and Eric Matthew Couch.
No Appearance for Appellee, Benjamin Cromer.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)
- Barr v. BEL Flooring, Inc., 410 So. 3d 1219 (Fla. 4th DCA 2025)