Forum v. Boca Burger, Inc.

• Decision Date: 16 May 2001
• Docket Number: No. 4D00-1255.,4D00-1255.
• Citation: 788 So.2d 1055
• Parties: Richard FORUM, Appellant, v. BOCA BURGER, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

788 So.2d 1055

Richard FORUM, Appellant, v. BOCA BURGER, INC., a Florida corporation, Appellee.

No. 4D00-1255.

District Court of Appeal of Florida, Fourth District.

May 16, 2001.

Rehearing Denied August 1, 2001.

Charles Fox Miller and James Fox Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellant.

John R. Hargrove and Gordon James III of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for appellee.

FARMER, J.

We reverse the trial court's decision dismissing the complaint with prejudice. The lower court erred in refusing to recognize and accept the amended complaint filed by plaintiff without leave of court before the hearing on the pending motion to dismiss the original complaint for failure to state a cause of action. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served. With the case having proceeded only as far as the filing of an original complaint and a motion to dismiss, the court had no discretion to refuse to accept the new pleading.

We have also decided to grant plaintiff's motion for attorney's fees under section 57.105 and write to explain our thinking. We begin by noting that the original complaint alleged mislabeling of a food product which, the complaint said, falsely declared that it was "all natural" when in fact the vegetable product contained chemically treated wood pulp, called methylcellulose. The pleading sought a declaratory judgment and injunctive relief under the Florida Deceptive and Unfair Trade Practices Act,¹ as well as damages. Defendant responded solely with a motion to dismiss for failure to state a cause of action; no answer was filed. On March 1st defendant scheduled a hearing on the motion for the afternoon of March 28th.

On the morning of March 28th, plaintiff filed an amended complaint without leave of court. As we have just held, it was perfectly proper for plaintiff to file the new pleading because the rules of procedure permit one amendment of a complaint without prior leave of court when there has been no "responsive pleading" by the opposing party. See Fla.R.Civ.P. 1.190(a) ("A party may amend a pleading once as a matter of course at any time before a responsive pleading is served."). A motion to dismiss is not a "responsive pleading" because it is not even a pleading. See Fla.R.Civ.P. 1.100(a) (designating permissible pleadings and providing that "[n]o other pleadings shall be allowed").

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 they² 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.³ 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."

Actually neither argument could be made in good faith. The Florida procedural rules are not controlled by interpretations of federal rules by federal trial courts in Michigan. Rule 1.190(a) indisputably permits an amendment of a complaint when the only response is a motion to dismiss. The only time requirement is that it be filed before a responsive pleading is filed. Our decision in Life General does not even remotely suggest anything to the contrary except that at this stage, if discretion were truly involved, it would be an abuse of it not to permit the amendment.

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. We have of course reversed the trial court's determination, thereby reinstating the amended complaint, to which defendant will now have to respond.

Obviously the trial judge was misled by the argument of defense counsel on both issues. It is incontestable that there is no impropriety in the appearance of additional counsel—as indisputably these new lawyers for plaintiff were—filing the amended complaint and arguing on plaintiff's behalf at the hearing. It is just as incontrovertible that plaintiff had every right under the rule—so early in the case—to amend his complaint without leave of court, and therefore the legal sufficiency of the original complaint was clearly moot. See Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966)

("An original pleading is superseded by an amendment of it which does not express an intention to save any portion of it.").

There were some early cases outside this district finding a residual discretion in the trial judge to deny leave to amend when sought by a party before the filing of a responsive pleading, but even they go on to hold that it is an abuse of discretion to deny the amendment unless as a matter of law plaintiff clearly could never state a cause of action. See Volpicella v. Volpicella, 136 So.2d 231 (Fla. 2nd DCA 1962)

("Under [rule 1.190], a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. This rule has not yet been construed as depriving a trial court of discretion to withhold leave to amend a pleading to which no response has been served. The rule does however indicate that a denial of leave to amend in such a case amounts to an abuse of discretion unless a complaint is clearly not amendable."); see also Nenow v. Ceilings & Specialties Inc., 151 So.2d 28 (Fla. 2nd DCA 1963) (same). Frankly we doubt the correctness of the second district's assertion of residual discretion. Rule 1.190(a) states a rule, not a discretion, as regards to amending before a responsive pleading is filed. The only reason discretion was even involved in Volpicella is that the plaintiff invoked it by asking for permission to file an amended complaint in spite of the rule allowing an amendment without prior permission. Plaintiff here did not ask for leave; he exercised his right to file the amended pleading before a responsive pleading was filed.

The issue is whether section 57.105 would permit an award of fees for defense counsel's conduct. As originally drafted, the section stated that: "[t]he court shall award a reasonable attorney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party." In 1986 this text was amended to read:

"The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the defense, the court shall

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