REO LLC v. REO LLC (2026)

District Court of Appeal of Florida, Sixth District.

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.

Case No. 6D2025-2267

Decided: October 23, 2026

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.

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 time-barred 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.

FOOTNOTES

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).

WOZNIAK, J.

WHITE and BROWNLEE, JJ., concur.

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