Summary
noting that “[o]nce a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless” separate notice is given or the order specifies that no notice will be given
Summary of this case from Lozman v. City of Riviera BeachOpinion
No. 85-296.
December 24, 1985.
Appeal from the Circuit Court, Dade County, Thomas A. Testa, J.
Frank Wolland, North Miami, for appellant.
No appearance for appellee.
Before BARKDULL, HUBBART and FERGUSON, JJ.
The order dismissing plaintiff's complaint with prejudice for failure to timely amend is reversed on authority of Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla. 1982). 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. Neither condition was satisfied here.
An amended complaint was filed five days outside the fifteen-day allotted time, but eight months before the order of dismissal with prejudice was entered.
Reversed and remanded for further proceedings.