Commercial Garden Mall v. Success Academy, Inc., 83-1037

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Commercial Garden Mall v. Success Academy, Inc., 453 So.2d 934 (Fla. App. 1984)
• Decision Date: 15 August 1984
• Docket Number: No. 83-1037,83-1037
• Parties: COMMERCIAL GARDEN MALL, a general partnership, Appellant, v. The SUCCESS ACADEMY, INC., a Florida corporation, and Lawrence D. Greer, individually, Appellees.

Page 934

453 So.2d 934

COMMERCIAL GARDEN MALL, a general partnership, Appellant, v. The SUCCESS ACADEMY, INC., a Florida corporation, and Lawrence D. Greer, individually, Appellees.

No. 83-1037.

District Court of Appeal of Florida Fourth District.

Aug. 15, 1984.

Jon Jay Ferdinand of Law Offices of Kaufman, Houchins & Ferdinand, Fort Lauderdale, for appellant.

Spencer M. Sax and George Aslanian of Sachs & Weiss, P.A., Boca Raton, for appellees.

PER CURIAM.

Plaintiff's original complaint for breach of a lease was dismissed for failure to attach a copy thereof. The lease was attached to the First Amended Complaint, but again defendants moved to dismiss, this time alleging the lack of the accompanying personal guarantee and the lack of a corporate seal. The lower court again dismissed the complaint, allowing plaintiff twenty days to amend. Thirteen days after this order was entered the plaintiff filed a "Motion for Rehearing," requesting the judge to articulate the grounds upon which the First Amended Complaint had been dismissed and offering case law on the issue of a defendant's personal liability on the lease. A hearing was held on this motion, resulting in a denial. Twelve days later the plaintiff filed his Second Amended Complaint. This time the defendants moved to dismiss on the basis that the Second Amended Complaint was filed more than twenty days after the trial court's order granting the motion to dismiss giving plaintiff twenty days to amend. This Second Amended Complaint was dismissed with prejudice and the plaintiff appeals both this and the dismissal of his First Amended Complaint. We reverse.

While a non-final order is not subject to a petition for rehearing, Hubert v. Division of Administration, State Department of Transportation, 425 So.2d 671 (Fla.2d DCA 1983), it is also true that a trial court has jurisdiction to control its own non-final orders prior to entry of final judgment. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). Therefore, the trial court had the discretion to entertain a petition for rehearing if it chose to do so. It did so choose and thereby impliedly tolled the time for filing the Second Amended Complaint which was filed only twelve days after the court denied the petition for rehearing. Since the trial court initially determined that a Second Amended Complaint could be filed within twenty days of the dismissal of the First Amended Complaint, the Second Amended Complaint was timely filed, and the trial court abused its discretion in dismissing it.

The plaintiff also appeals the dismissal of his First Amended Complaint, the grounds for which as we have said were not set forth by the trial court. However, an original pleading is usually superseded by an amendment to it Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966), so the merits of the dismissal of that First Amended Complaint are not before us. Notwithstanding, we perceive that upon remand these issues will again be considered below, so we make the following comments in the interest of judicial economy.

The Lease Agreement was signed:

The Success Academy, Inc.,

By: Lawrence D. Greer,

President

The Lease contained the following clause on p. 16:

SPECIAL CLAUSES:

1. In the event of default of this lease by The Success Academy, Inc., the terms and conditions herein shall be personally guaranteed by Lawrence D. Greer, President of The Success Academy, Inc.

In his First Amended Complaint plaintiff alleged in paragraph 6:

That the Defendant, LAWRENCE D. GREER, did, pursuant to the provision of the Lease as set forth on page 16 of said Lease agreed and promised in the event of default of this Lease by THE SUCCESS ACADEMY, that he was...