Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005), Case No. SC01-1830.

CourtFlorida Supreme Court
Writing for the CourtCantero
PartiesBOCA BURGER, INC., etc., Petitioner, v. RICHARD FORUM, Respondent.
Decision Date07 July 2005
Docket NumberCase No. SC01-1830.

Page 1

BOCA BURGER, INC., etc., Petitioner,
RICHARD FORUM, Respondent.
Case No. SC01-1830.
Supreme Court of Florida.
July 7, 2005.

Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions, Fourth District — Case No. 4D00-1255, (Broward County).

John R. Hargrove and W. Kent Brown of Heinrich, Gordon, Hargrove, Weihe and James, P.A., Fort Lauderdale, Florida, Edna L. Caruso of Caruso, Burlington, Bohn and Campiani, P.A., West Palm Beach, Florida, and John A. Beranek of Ausley and McMullen, Tallahassee, Florida, for Petitioner.

James Fox Miller, Charles Fox Miller and Greg A. Lewen of Miller, Schwartz and Miller, P.A., Hollywood, Florida, for Respondent.

Paul D. Jess, Tallahassee, Florida, William C. Gentry, Jacksonville, Florida and Robert S. Peck, Washington, DC, on behalf of the Academy of Florida Trial Lawyers, Inc.; Florida Consumer Action Network, Inc.; Coalition for Family Safety, Inc.; Florida League of Conservation Voters, Inc.; Florida AFL-CIO; Association of Flight Attendants, AFL-CIO; Des Action, National; Florida State Conference of Branches of NAACP; Florida National Organization for Women, Inc.; Children's Advocacy Foundation, Inc.; Al J. Cone; and the Florida Alliance for Retired Americans, Inc., as Amici Curiae,

George N. Meros, Jr., and Lori S. Rowe of Gray, Harris and Robinson, P.A., Tallahassee, Florida, Joseph W. Hatchett of Akermann, Senterfitt and Edison. P.A., Tallahassee, Florida and Raymond Ehrlich of Holland and Knight, Jacksonville, Florida, On behalf of Publix Supermarkets; Citizens for a Sound Economy; Associated Industries of Florida; Florida Chamber of Commerce; Florida Institute of CPA's; Florida Medical Association; Florida Retail Federation; Florida United Business Association; National Federation of Independent Business; Association of Community Hospitals and Health System of Florida, Inc.; City of Orlando; Dade County; Florida Association of Counties; Florida League of Cities; Florida Sheriffs Association; and Tort Reform United Effort (TRUE), as Amici Curiae



We review Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001), which expressly and directly conflicts with Volpicella v. Volpicella, 136 So. 2d 231, 232 (Fla. 2d DCA 1962). The conflict concerns whether a trial court has discretion to deny a plaintiff leave to amend the complaint once before a responsive pleading is served. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Boca Burger, Inc. v. Forum, 817 So. 2d 844 (Fla. 2002) (granting review). While we grant jurisdiction to review this issue, we also have authority to address other issues properly raised. See Savoie v. State, 422 So. 2d 308, 310 (Fla. 1982) (stating that once the Supreme Court accepts jurisdiction over a case to resolve the legal issue in conflict, it may, in its discretion, consider other issues properly raised and argued before the Supreme Court). For the reasons we explain below, we hold that a plaintiff has the absolute right to amend a complaint once as a matter of course before a responsive pleading is served, and a trial court has no discretion to deny such an amendment; that a defendant may assert an affirmative defense, including the defense of federal preemption, in a motion to dismiss; and that an appellate court may, in appropriate circumstances, impose sanctions on an appellee or its lawyer for its frivolous defense of a patently erroneous trial court order.


Respondent Richard Forum filed an action against petitioner Boca Burger, Inc., seeking declaratory judgment, injunctive relief, and damages under the Florida Deceptive and Unfair Trade Practices Act (the "FDUTPA"). See §§ 501.201-.213, Fla. Stat. (2000). Boca Burger filed a motion to dismiss with prejudice, arguing that Forum's complaint failed to state a cause of action and was otherwise preempted by federal and state law. For purposes of the motion, Boca Burger assumed that Forum purported to allege an FDUTPA violation in connection with the manufacture and distribution of a food product, which is Boca Burger's sole line of business. Boca Burger argued that any such claim was preempted by Florida's Food Safety Act, sections 500.01-.601, Florida Statutes (2000), which grants the Department of Agriculture and Consumer Services exclusive jurisdiction to protect the public from injury flowing from intrastate commerce in food. It further argued that any claim not preempted by Florida law was preempted by the Federal Food, Drug and Cosmetic Act, which governs the manufacture and distribution of food through interstate commerce. See 21 U.S.C. §§ 301-397 (2000).

Boca Burger scheduled a hearing on its motion to dismiss. On the morning of the hearing, Forum, through new (though not substitute) counsel, filed an amended complaint without leave of court. The amended complaint asserted multiple claims for relief arising from the alleged "intentional and negligent misrepresentations and omissions by [Boca Burger] concerning the nature and ingredients of their purportedly `all natural' vegetarian hamburger patty substitute." Forum accused Boca Burger of omitting ingredients from the product label. Based on these facts, Forum alleged both statutory and common law violations.1 The district court summarized what transpired at the hearing:

The amended complaint was filed over the names of three sets of lawyers who had not appeared on the original complaint, but one had the same address as counsel who filed the original complaint. At the hearing the trial judge first mentioned both the filing of the amended complaint and the fact that the lawyer appearing at the hearing on behalf of plaintiff was not the lawyer who had signed the original complaint. Counsel responded that he had filed a notice of appearance that morning along with the amended complaint. The trial judge replied that he had a "fundamental problem" with both aspects: the complaint had been amended without leave of court, and the lawyer at the hearing was not the lawyer who had signed the original complaint on plaintiff's behalf.

The trial judge asked defense counsel if they had any comments on both matters raised by the court. Defense counsel first addressed the appearance of different attorneys who were now representing plaintiff. He stated that the lawyer who had filed the original pleading had his own firm, and that one of the lawyers signing the amended pleading had a different firm but at the same address as the first. He admitted that he had communications before the hearing with one of the new lawyers listed on the amended pleading but added that "he's never defined exactly—to my knowledge—his role . . . ." The tone and tenor of his remarks was to hint that there was some impropriety in these new lawyers appearing on plaintiff's behalf, notably failing to say what it might be. Defense counsel failed to acknowledge that the rules expressly permit the appearance of additional attorneys for a party without leave of court. The judge again suggested disapproval of the appearance but decided to "skip that one for a minute."

Turning to the issue of amending the complaint without leave of court, the trial judge next noted that the hearing had been set for nearly four weeks and that the amended complaint had been filed only on the day of the hearing. Plaintiff's counsel pointed out that the rules permit an amendment without leave of court before a responsive pleading is filed and that the pending motion to dismiss was not a responsive pleading. Again the court turned to defense counsel.

Defense counsel argued case authority from a federal trial court in Michigan that, as he put it, "suggests that attempting to amend a complaint while a motion to dismiss is pending is procedurally improper and causes prejudice to the party seeking to dismiss the complaint." He also cited a bankruptcy case which he claimed was to the same effect. He then added that our decision in Life General Security Insurance Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 1996), "suggests that leave to amend or attempting to amend a complaint at the eleventh hour would cause prejudice to the opposing party, and it is within the discretion of the trial court to deny." While conceding that "the rule is what it is," he went on to contend "it is within the court's discretion to deny leave to amend."

. . . .

The trial judge thereupon announced that he would proceed with the hearing for argument on the pending motion to dismiss—but only as to the initial complaint. The judge added that he would not "recognize" the amended complaint" as filed." The outcome was that the court granted the motion to dismiss the original complaint with prejudice, thereby refusing to permit any amendments to the pleading, and finding that the complaint raised claims that are" pre-empted" by federal and Florida law.

Forum, 788 So. 2d at 1057-59 (footnotes omitted).

On appeal, the Fourth District reversed. The court did not "[overlook] defendant's argument that plaintiff's claims [were] pre-empted by federal law," but concluded that the "essential problem with that argument is that it was being raised at the wrong time, under the auspices of the wrong motion." Id. at 1061. According to the district court, Boca Burger's preemption argument constituted an avoidance, not a real defense, that should have been pled only as an affirmative defense and resolved on motion for summary judgment.

The district court also reversed the trial court's decision to dismiss the complaint, holding that Forum could amend his complaint by right, and that the amended complaint superseded the initial complaint. According to the district court, Boca Burger's counsel misled the trial court into believing that it had discretion to refuse Forum's amended complaint. Id. at 1059. Concluding that counsel could not have made such an argument in good faith at either the trial or appellate...

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