Summary
reversing order of dismissal and remanding with instructions to permit filing of the third amended complaint where plaintiff filed a third amended complaint 14 days late due to miscalendaring and there was no evidence of prejudice or significant inconvenience
Summary of this case from Hernandez v. Citizens Prop. Ins. Corp.Opinion
Nos. 86-1145, 86-1391.
September 22, 1987. Rehearing Denied November 13, 1987.
Appeal from the Circuit Court, Dade County, Edward N. Moore, J.
Ezell, Menendez Patterson and William D. Matthewman, Miami, for appellant.
Preddy, Kutner, Hardy, Rubinoff, Brown Thompson and G. William Bissett; Alonso Alonso, Miami, and Alex Alonso, for appellees.
Before HUBBART and FERGUSON and JORGENSON, JJ.
This is an appeal by the plaintiff Andres Araujo-Sanchez from two final orders which dismiss the plaintiff's third amended complaint against the defendants Henry A. Amoon, Alex Alonso, and Marcelino Suarez. The sole basis for the dismissal was that the plaintiff was fourteen days late in filing his third amended complaint under a prior trial court order which had dismissed the plaintiff's second amended complaint, but had given the plaintiff thirty days to file an amended complaint. Plaintiff's counsel miscalendared the due date of the amended complaint because he misread the court's order to give him thirty days from the date of the entry of the order of dismissal to file an amended complaint, as is usually the case in orders of this nature — instead of thirty days from the date of the hearing on the prior motion to dismiss, as provided by the said order.
Because (a) the miscalendaring by plaintiff's counsel of the amended complaint's due date constitutes excusable neglect for the subsequent untimely filing of the third amended complaint, (b) the defendants were in no way prejudiced by the delay in filing the said amended complaint, and (c) the subject amended complaint was late by a relatively small amount of time — fourteen days — which caused no significant inconvenience to the court, we conclude that the trial court abused its discretion in dismissing the third amended complaint as being untimely filed. D'Best Laundromat, Inc. v. Janis, 508 So.2d 1325 (Fla. 3d DCA 1987); Beaver Indus. v. Westlake Dev. Corp., 382 So.2d 1233 (Fla. 2d DCA 1980); In re Ulm's Estate, 345 So.2d 1099 (Fla. 2d DCA 1977); English v. Hecht, 189 So.2d 366 (Fla. 3d DCA), cert. denied, 194 So.2d 619 (Fla. 1966); see also Gibraltar Serv. Corp. v. Lone Assocs., Inc., 488 So.2d 582 (Fla. 4th DCA 1986); Florida Aviation Academy v. Charter Air Center, Inc., 449 So.2d 350 (Fla. 1st DCA 1984); Hall v. Byington, 421 So.2d 817 (Fla. 4th DCA 1982); Travelers Ins. Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977). The final orders of dismissal under review are, therefore, reversed, and the cause is remanded to the trial court with directions to permit the plaintiff to late-file his third amended complaint.
Reversed and remanded.
HUBBART and FERGUSON, JJ., concur.
I respectfully dissent.
While the majority correctly posits that a slight delay in filing an amended complaint will not support a trial court's dismissal of the complaint where the defendant has suffered no prejudice, the instant case concerns more than simple tardiness. The record reflects the trial court's concern that the case had "dragged on" since 1982. The plaintiff had waited until shortly before trial to seek leave to add additional defendants, and the trial court permitted the plaintiff to so amend its complaint. The trial court dismissed the plaintiff's second amended complaint for failure to state a cause of action and allowed the plaintiff thirty days from the date of the hearing on the motion to dismiss to file his third amended complaint. Against this back-drop, the plaintiff's fourteen-day lapse did not constitute excusable neglect, and the trial court did not abuse its discretion in dismissing the complaint with prejudice. Indeed, the late filing of the third amended complaint "is not a failure to comply with an order of the court, but is a continuing failure to state a cause of action after having commenced the litigation." Allied Gen., Inc. v. Helliwell, Melrose DeWolf, 429 So.2d 1287 (Fla. 3d DCA 1983) (Ferguson, J., specially concurring).
For this reason, I would affirm the trial court's order.