DESANTIS v. FC LENDING SUNSHINE LLC (2021)

The Estate of Carol DeSantis filed a four-count complaint against thirty-one entities alleging counts of aiding and abetting, breach of fiduciary duty, and civil conspiracy. The trial court granted motions to dismiss as to two of the named defendants, FC Lending-Sunshine and Pacific Western Bank Corporation, with prejudice, and this appeal by the Estate followed. We have jurisdiction. See Andrew v. Shands at Lake Shore, Inc., 970 So. 2d 887, 889 (Fla. 1st DCA 2007) (“Because the order disposes of the entire case as to an individual party it is immediately appealable as a partial final judgment.”). Because the Estate was entitled to amend its complaint once as a matter of course pursuant to Florida Rule of Civil Procedure 1.190(a), we must reverse. We express no opinion on the merits of the remaining issues raised in the Estate's appeal or on the merits of the Estate's complaint in general.

Rule 1.190(a) permits a party to “amend a pleading once as a matter of course at any time before a responsive pleading is served,” and as is relevant to the facts presented here, a motion to dismiss is not deemed a responsive pleading. See Williams v. Gaffin Indus. Servs., Inc., 88 So. 3d 1027, 1030 (Fla. 2d DCA 2012). Indeed, where a defendant has filed only a motion to dismiss following the filing of a complaint, “[t]he trial court [does] not have discretion to dismiss the action with prejudice.” Fowler v. Paradise Lakes Condo. Ass'n, 133 So. 3d 576, 577 (Fla. 2d DCA 2014); see also Dot (SR), Inc. v. Telesur, 136 So. 3d 1239, 1241 n.2 (Fla. 2d DCA 2014). This is true even if it seems that amending the complaint would be a futile effort. See Solonenko v. Vogue Props., LLC, 192 So. 3d 87, 87 (Fla. 4th DCA 2016) (“While appellee argues amendment of the complaint would be futile, appellant has the right to amend her complaint, even if it appears likely that the amended complaint would be meritless.”). Because the Estate was not afforded the opportunity to amend the complaint once as a matter of course following the trial court's order granting the appellees' motion to dismiss, we must reverse the order dismissing with prejudice the Estate's complaint against FC Lending-Sunshine and Pacific Western Bank Corporation.

Accordingly, we reverse that part of the order dismissing the complaint with prejudice and remand for entry of an amended order of dismissal without prejudice so that the Estate may amend its complaint in accordance with Florida Rule of Civil Procedure 1.190.

Reversed and remanded with instructions as outlined above.

VILLANTI, Judge.

MORRIS, C.J., and SMITH, J., Concur.