Bouldin v. Okaloosa County

• Decision Date: 29 April 1991
• Docket Number: No. 90-1029,90-1029
• Citation: 580 So.2d 205,16 Fla. L. Weekly 1206
• Parties: Ken R. BOULDIN, H.D. Blasbichler and wife Christine Blasbichler, James A. Mosley and wife Virginia Mosley, June Decker, and William N. Wilson, Appellants, v. OKALOOSA COUNTY, Florida, Appellee. 580 So.2d 205, 16 Fla. L. Week. 1206
• Court: Florida District Court of Appeals

Page 205

580 So.2d 205

Ken R. BOULDIN, H.D. Blasbichler and wife Christine Blasbichler, James A. Mosley and wife Virginia Mosley, June Decker, and William N Wilson, Appellants, v. OKALOOSA COUNTY, Florida, Appellee.

No. 90-1029.

580 So.2d 205, 16 Fla. L. Week. 1206

District Court of Appeal of Florida First District.

April 29, 1991.

Rehearing Denied June 4, 1991.

William K. Jennings, DeFuniak Springs, for appellants.

John R. Dowd, Shalimar, and Gillis E. Powell, Sr. of Powell, Powell & Powell, Niceville, for appellee.

PER CURIAM.

Ken R. Bouldin, H.D. Blasbichler, Christine Blasbichler, James Mosley, Virginia Mosley, June Decker, and William N. Wilson (hereafter referred to collectively as Bouldin or appellants) appeal a final order dismissing their amended complaint against Okaloosa County with prejudice for failure to state a cause of action. We reverse and remand for further proceedings.

On November 20, 1988, appellants filed a complaint against the Board of County Commissioners of Okaloosa County seeking a declaratory judgment and injunctive relief. On November 28, 1989, before a responsive pleading was filed, they filed an amended complaint naming Okaloosa County as the defendant. This complaint sought a declaratory decree that Resolution 89-101, adopted by the Okaloosa County Commission, was invalid, and sought an injunction to prohibit the county from implementing that resolution. The resolution in question purported to vacate, abandon, discontinue, and close a portion of S.R. 30 known as Old U.S. 98. The amended complaint alleged, among other things, that: appellants owned properties or businesses adjoining the portion of Old U.S. 98 referred to in Resolution 89-101; in enacting Resolution 89-101, the commission failed to follow the procedural requirements of sections 336.08, 336.09, and 336.10, Florida Statutes (1989); the commission abused its discretion by vacating, abandoning, discontinuing, and closing the disputed portion of Old U.S. 98; and their various properties were directly affected in certain ways by the action taken in Resolution 89-101. Attached to and incorporated by reference in the amended complaint were numerous documents relating to the action taken in Resolution 89-101, including several notices of the public hearing; a 1982 agreement between the Department of Natural Resources and Okaloosa County regarding the relocation of the road; a copy of the transcript of the public hearing held November 7, 1989, on the commission's intent to close the road; a copy of Resolution 89-101; and copies of other related resolutions. The county filed a motion to dismiss the amended complaint for lack of standing and failure to state a cause of action.

Appellants subsequently filed motions for leave to amend for the purpose of joining the Department of Natural Resources and the Board of Trustees of the Internal Improvement Trust Fund as respondents and a motion for temporary injunction against that Department, and tendered second amended complaints naming the Department and the Board of Trustees as respondents. These motions do not appear to have been ruled on. In any event, neither the Department nor the Board of Trustees was ever served and the complaints against them are not at issue in this appeal.

After a hearing on the county's motion to dismiss the amended complaint, the circuit court entered a final order dismissing the amended complaint against the county with prejudice. Among other things, that order provided:

1. Plaintiffs have standing to challenge the legal sufficiency of the public notice requirements for the vacation of a County road.

2. The public notice as alleged in Plaintiff's Complaint was more than legally sufficient for the vacation of the portion of the County road in question.

3. Defendant's Motion to Dismiss as to the notice requirements is hereby granted.

4. The Complaint fails to allege facts sufficient to show that the action of the Board of County Commissioners has caused Plaintiffs an injury different in kind and degree from that sustained by other members of the community at large, and is dismissed for lack of standing to maintain this action.

5. In matters concerning the abandonment, vacation, or discontinuance of roads, the law accords a wide latitude of discretion to the Board of County Commissioners and such discretion will not be disturbed in the absence of a clear abuse thereof or the invasion of property rights, which has not been alleged in this cause.

6. Defendant's Motion to Dismiss for failure to state a cause of action as to the action taken by the Board of County Commissioners is hereby granted with prejudice.

Appellants raise six issues on this appeal. For the reasons hereafter discussed, we reverse the final order dismissing the amended complaint and remand for further proceedings.

First, the circuit court's ruling that Bouldin lacks standing to challenge the Board's exercise of discretion in adopting the various resolutions relating to the closing of part of Old Highway 98 is error. The allegations of the complaint are sufficient to support appellants' standing to raise these contentions under Safer v. City of Jacksonville, 212 So.2d 785, 787-88 (Fla. 1st DCA 1968).

Second, the circuit court erred in dismissing the amended complaint with prejudice. Florida Rule of Civil Procedure 1.190(a) provides that when a party applies to the court to amend the complaint after a responsive pleading has been served, "[l]eave of court shall be given freely when justice so requires." Under this rule, even if a trial court believes that an amended complaint fails to state a cause of action, dismissal with prejudice denying leave to amend is not justified on that basis alone. Rather, the plaintiff should be given leave to amend the complaint, unless the court further finds that the privilege to amend has been clearly abused or the complaint is clearly not amendable. See Crews v. Ellis, 531 So.2d 1372 (Fla. 1st DCA 1988); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980); Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978).

In this case, appellants amended their original complaint before any responsive pleadings were filed, and after the county filed its motion to dismiss, appellants again attempted to amend the complaint to add two other parties who were never served. This does not rise to the level of clear abuse of the privilege to amend. Nor does it appear that the amended complaint is not amendable to cure at least some of the deficiencies found by the circuit court. The final order dismissing the amended complaint with prejudice merely stated that the facts alleged were legally insufficient to allege a cause of action against the county; it contained no finding that appellants had abused the amendment privilege or that the amended complaint was clearly not amendable. Because this record does not support a finding that the privilege to amend was abused or that the complaint was not amendable, the circuit court erred in dismissing the amended complaint with prejudice. Crews v. Ellis, supra; Highlands County School Board v. K.D. Hedin Construction Inc., supra; Osborne v. Delta Maintenance and Welding, Inc., supra. The dismissal in this case should have been "without prejudice" in order to allow appellants an opportunity to amend. See Wiggins v. Tart, 407 So.2d 1094 (Fla. 1st DCA 1982).

Third, the allegations of the amended complaint are facially sufficient to state a cause of action for declaratory and injunctive relief based on allegations that the notices of the public hearing failed to comply with the statutory requirements of sections 336.09 and 336.10, Florida Statutes (1989). Section 336.09 provides in pertinent part:

(1) The commissioners, with respect to property under their control may in their own discretion, and of their own motion, or upon the request of any agency of the state, or of the federal government, or upon petition of any person or persons, are hereby authorized and empowered to:

(a) Vacate, abandon, discontinue and close any existing public or private street, alleyway, road, highway, or other place used for travel, or any portion thereof, other than a state or federal highway, and to renounce and disclaim any right of the county and the public in and to any land in connection therewith.

* * * * * *

(2) The commissioners, upon such motion, request, or petition, may adopt a resolution declaring that at a definite time and place a public hearing will be held to consider the advisability of exercising the authority granted in this section.

Section 336.10 provides:

Before any such road shall be closed and vacated, or before any right or interest of the county or the public in any land delineated on any recorded map or plat as a road shall be renounced or disclaimed, the commissioners shall hold a public hearing, and shall publish notice thereof, one time, in a newspaper of general circulation in such county at least 2 weeks prior to the date stated therein for such hearing. After such public hearing, any action of the commissioners, as herein authorized, shall be evidenced by a resolution duly adopted and entered upon the minutes of the commissioners....

(Emphasis added).

The first notice was published on October 16, 1989, more than two weeks prior to the public hearing, and recited that at the public hearing on November 7 the Board would consider the "vacation" of the following portion of S.R. 30 (Old U.S. 98):

S.R. 30 (Old U.S. 98) from Mile Post Marker 20.481 (Moreno Point) to Mile Post Marker 24.529 (Walton County Line) for a distance of approximately 4.048 miles.

The second notice, entitled "Amended Public Notice," was published on October 20, 1989, and recited that the commission would consider "vacation of that portion of S.R. 30 (Old U.S. 98) right-of-way lying adjacent to the ... Henderson beach property" and set forth a legal description...