Opinion
Case No. 2D20-269
05-12-2021
Domenico A. BOSCO and Barbara Gallone, Appellants, v. GLOBAL PROPERTIES OF NAPLES, LLC, Appellee.
Christopher D. Donovan and Benjamin Joseph Bogos of Roetzel & Andress, LPA, Naples, for Appellants. Alexandra Valdes of Cole, Scott & Kissane P.A., Miami, for Appellee.
Christopher D. Donovan and Benjamin Joseph Bogos of Roetzel & Andress, LPA, Naples, for Appellants.
Alexandra Valdes of Cole, Scott & Kissane P.A., Miami, for Appellee.
BLACK, Judge.
Domenico A. Bosco and Barbara Gallone appeal from the order dismissing with prejudice their counterclaim against Global Properties of Naples, LLC. We reverse and remand for further proceedings.
Mr. Bosco and Ms. Gallone are the sole members of Kitchen 41, LLC, and guarantors of the lease between Kitchen 41 and Global Properties. Global Properties, the landlord, sued Kitchen 41, the tenant, for breach of the lease. Global Properties also named Mr. Bosco and Ms. Gallone (the Guarantors) as defendants in their capacity as guarantors. Kitchen 41, together with the Guarantors, filed an answer; Kitchen 41 also filed a counterclaim. Global Properties answered the counterclaim and filed a motion to dismiss. Thereafter, Kitchen 41 and the Guarantors filed a motion to amend the answer to include additional affirmative defenses and to amend the counterclaim. The Guarantors sought to bring their own counterclaim, separate from Kitchen 41's. The motion to amend was granted, and Kitchen 41's amended answer and counterclaim and the Guarantors' counterclaim were filed.
An "Order on Joint Stipulation for Partial Dismissal" was subsequently entered; the order dismissed with prejudice Global Properties' action against Kitchen 41 and the Guarantors and dismissed six counts of the amended counterclaim. The six dismissed counts were those raised by Kitchen 41 or Kitchen 41 and the Guarantors together. Only the negligence counts asserted by the Guarantors individually remained pending. Before answering the Guarantors' counterclaim, Global Properties moved to dismiss the remaining counts. Among other things, Global Properties alleged that provisions of the lease not expressly cited by the Guarantors precluded their counterclaim.
On appeal, the Guarantors contend that the trial court erred in dismissing their counterclaim with prejudice. They argue both that they were entitled as a matter of right to amend their counterclaim at least once prior to dismissal with prejudice and that the trial court abused its discretion in denying them leave to amend.
Florida Rule of Civil Procedure 1.190 provides, in pertinent part, that "[a] party may amend a pleading once as a matter of course at any time before a responsive pleading is served." Fla. R. Civ. P. 1.190(a). In this case, Global Properties filed an answer to Kitchen 41's counterclaim, and the claims therein were specific only to Kitchen 41. The amended answer and counterclaim was the first pleading in which the Guarantors counterclaimed against Global Properties. The language of the rule clearly applies to any "pleading." Thus, the Guarantors had "an automatic right to amend" their counterclaim. See Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005).
Moreover, at the hearing on Global Properties' motion to dismiss the Guarantors' counterclaim, the Guarantors sought leave to amend. That request was denied.
Leave of court to amend a pleading shall be given freely when justice so requires. Fla. R. Civ. P. 1.190(a). 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. S. Developers & Earthmoving, Inc. v. Caterpillar Fin. Servs. Corp., 56 So. 3d 56, 62 (Fla. 2d DCA 2011). A trial court's refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party, (2) the privilege to amend has been abused, or (3) the amendment would be futile. Id. at 62-63.
Laurencio v. Deutsche Bank Nat'l Tr. Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) ; see also Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., 296 So. 3d 584, 589 (Fla. 1st DCA 2020) ("Accordingly, 'a trial court should grant leave to amend, rather than dismiss a complaint with prejudice, unless a party has abused the privilege to amend, an amendment would prejudice the opposing party, or the complaint is clearly not amendable.' " (quoting Fla. Nat'l Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla. 1st DCA 2002) )). We review the denial of a motion to amend a pleading for an abuse of discretion. Drish v. Bos, 298 So. 3d 722, 723 (Fla. 2d DCA 2020).
Global Properties has not suggested that it would be prejudiced by an amendment, and we see no prejudice. See Brown v. Chamax, LLC, 51 So. 3d 552, 555 (Fla. 2d DCA 2010). And, as this would be the first amendment to the Guarantors' counterclaim, there is clearly no abuse of the privilege. See Drish, 298 So. 3d at 725 (concluding that there had been no abuse of the privilege to amend where there had been no prior amendments). Finally, "[r]ule 1.190(a) 'is generally interpreted to allow a plaintiff to amend his complaint at least one time in an attempt to state a cause of action unless it is clear that a plaintiff cannot in good faith allege a set of circumstances sufficient to state a cause of action.' " Id. (quoting Grove Isle Ass'n v. Grove Isle Assocs., 137 So. 3d 1081, 1095 (Fla. 3d DCA 2014) ). Here, contrary to the trial court's determination, and as the Guarantors argue on appeal, the lease between Global Properties and Kitchen 41 does not directly contradict the Guarantors' claims and amendment would not be futile. See Faber v. Karl of Pasco, Inc., 198 So. 3d 875, 878 (Fla. 2d DCA 2016) ; Someplace New, Inc. v. Francois, 51 So. 3d 1215, 1217 (Fla. 4th DCA 2011) ; cf. Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (affirming dismissal with prejudice of complaint where the allegations were contradicted by exhibits attached to the complaint). Additionally, this court has held that "[w]here a party may be able to allege additional facts to support its cause of action" dismissal with prejudice is an abuse of discretion. Kapley v. Borchers, 714 So. 2d 1217, 1218 (Fla. 2d DCA 1998). It is apparent that the Guarantors can allege additional facts to more accurately or artfully set forth their claims.
The trial court erred in dismissing with prejudice the Guarantors' counterclaim. Accordingly, we reverse the order of dismissal with prejudice and remand for further proceedings.
Reversed and remanded.
MORRIS and ATKINSON, JJ., Concur.