JEFFREY GONZALEZ
v.
FERCO MOTORS CORP., ETC.
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A trial court abuses its discretion by dismissing a complaint with prejudice for failure to timely amend without either providing separate notice of the motion to dismiss with prejudice or including language in the original leave-to-amend order that dismissal will occur without further notice.
[1] Dismissal with prejudice for failure to timely amend a complaint constitutes an abuse of discretion unless the trial court either provides separate notice of the hearing…
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Join FLexlaw to unlock all legal intelligence“Once a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.”
Statement of applicable legal standard from Kruger v. Kruger
Gonzalez sued his former employer Ferco Motors for unpaid sales commissions. The trial court entered an agreed order on December 19, 2019, granting Go…
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Third District Court of Appeal
State of Florida
Opinion filed February 24, 2021. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-208 Lower Tribunal No. 19-19304
________________
Jeffrey Gonzalez,
Appellant,
vs.
Ferco Motors Corp., etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Michael Hanzman and Beatrice Butchko, Judges. Remer & Georges-Pierre, PLLC, and Jason S. Remer, for appellant. Kubicki Draper, P.A., Barbara E. Fox and Jennifer Remy Estorino, for appellee. Before EMAS, C.J., and SCALES and GORDO, JJ. PER CURIAM.
Jeffrey Gonzalez appeals the trial court’s dismissal with prejudice of
the underlying breach of contract lawsuit.1 Gonzalez asserts the dismissal
order was erroneous because he was not afforded either notice of the
sanction or an opportunity to be heard. We agree, reverse and remand.
Gonzalez sued Ferco Motors Corp., his former employer, arguing it
had breached a contract because it had not paid Gonzalez commissions
owed for automobile sales. Ferco filed a motion to dismiss that complaint.
On December 19, 2019, based on the parties’ agreement, the trial court
entered an agreed order giving Gonzalez ten days to amend the complaint.
Thus, the amended complaint was required to be filed by December 30,
2019. The agreed order did not contain any language advising Gonzalez
that the failure to timely amend his complaint would result in dismissal of the
underlying action.
On December 30, 2019, Ferco filed its “Ex Parte Second Motion to
Dismiss,”2 and simultaneously submitted a proposed order to the judge’s
chambers, granting the motion. The trial court executed the proposed order
and dismissed Gonzalez’s action with prejudice that same day.
This Court has previously held that a dismissal with prejudice under
these circumstances constitutes an abuse of discretion. See Kruger v,
Kruger, 124 So. 3d 1033, 1034–35 (Fla. 3d DCA 2013).
Once a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice. Id. (quoting Sekot Labs., Inc. v. Gleason, 585 So. 2d 286, 287 (Fla. 3d DCA
1990)).
“Neither circumstance occurred here.” Id. at 1035. The court entered
the dismissal order with prejudice the same day that the motion was filed,
without a hearing affording Gonzalez an opportunity to respond and without
prior notice that such a sanction would be imposed. As such, “[t]he action
should not . . . have been dismissed [with prejudice] simply because
[Gonzalez] failed to file an amended complaint.” Id. “[D]ismissal with
prejudice for failure to file an amended complaint is an extreme sanction
which generally cannot be justified absent” findings consistent with the
factors enunciated in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).3 Id.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Sekot Labs., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990)
- Kruger v. Kruger, 124 So. 3d 1033 (Fla. 3d DCA 2013)
- Robert E.W. McMILLAN, III v. Horan, 632 So. 2d 1091 (Fla. 5th DCA 1994)