Jensen v. Pinellas Cnty.

• Decision Date: 03 April 2020
• Docket Number: Case No. 2D19-1016
• Citation: 293 So.3d 1076
• Parties: Jeffrey JENSEN, Appellant, v. PINELLAS COUNTY, Appellee.
• Court: Florida District Court of Appeals

293 So.3d 1076

Jeffrey JENSEN, Appellant,

v.PINELLAS COUNTY, Appellee.

Case No. 2D19-1016

District Court of Appeal of Florida, Second District.

Opinion filed April 3, 2020.

Jeffrey Jensen, pro se.

Nancy S. Meyer, Senior Assistant County Attorney, Pinellas County Attorney's Office, Clearwater, for Appellee.

CASANUEVA, Judge.

Jeffrey Jensen appeals an order dismissing his fifth amended complaint with prejudice. The complaint seeks injunctive and declaratory relief, challenging the validity of a Pinellas County ordinance regulating the sale of firearms. A prior reversal from this court gave Mr. Jensen the opportunity to amend his third amended complaint. Jensen v. Pinellas County, 198 So. 3d 754, 758 (Fla. 2d DCA 2016) ( Jensen I ). After two more amendments to the complaint, the trial court found it lacking and granted dismissal with prejudice. Because the stated basis for dismissal is not valid and because the record does not support a dismissal with prejudice, we reverse and remand for further proceedings.

I. Procedural History

In Jensen I, this court reversed a final declaratory judgment upholding the challenged ordinance¹ because the final judgment "attempt[ed] to resolve legal issues beyond those that properly could be resolved" on the pleadings and record then before the trial court. Id. Without addressing the merits of Mr. Jensen's claims, we reversed and remanded the final declaratory judgment but stated that "Mr. Jensen must narrow and sharpen his theories before the circuit court is obligated to provide any declaratory relief."² Id.

Mr. Jensen responded by filing his fourth amended complaint, which contained additional factual allegations, additional specificity as to counts I through VIII, and an additional count for declaratory relief. Pinellas County filed another motion to dismiss raising various arguments, including Mr. Jensen's failure to serve the Florida Attorney General as required by statute. After multiple memoranda of law filed by both parties, the trial court dismissed the fourth amended complaint without prejudice based on Mr. Jensen's failure to serve the Attorney General. Finding that this basis was dispositive, the court declined to address the other grounds for dismissal raised by Pinellas County.

Mr. Jensen then filed a fifth amended complaint addressing the service deficiency that was the basis for the prior dismissal. Pinellas County filed another motion to dismiss, this time with prejudice, for the most part renewing the arguments made in its motion to dismiss the fourth amended complaint but excluding the service deficiency argument. Based on its review of the court file, the motion, and applicable law, and without a hearing, the trial court granted the motion to dismiss with prejudice.³

II. Analysis

The standard of review of an order granting a motion to dismiss is de novo. Swope Rodante, P.A. v. Harmon, 85 So. 3d 508, 509 (Fla. 2d DCA 2012). In ruling on a motion to dismiss, a trial court's examination is limited to the four corners of the complaint, the allegations in the complaint must be taken as true, and all inferences must be resolved in favor of the plaintiff. Id. "It is well settled that a complaint should not be dismissed with prejudice if it supports a cause of action on any ground." Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822, 824 (Fla. 2d DCA 1997) ; see also Wilson v. News-Press Publ'g Co., 738 So. 2d 1000, 1001 (Fla. 2d DCA 1999) ("[A] court should not dismiss a complaint with prejudice if it is actionable on any ground.").

In this case, the order dismissing the fifth amended complaint states: "Plaintiff still presents this court with a vague and abstract request for declaratory and injunctive relief. Plaintiff has not established a legal or factual basis for the court to hold the challenged ordinance unconstitutional, or otherwise invalid." The order then goes on to address plaintiff's "questionable effort" in responding to certain court orders, including the court's need to make multiple requests for memoranda of law in response to the motion to dismiss the fourth amended complaint. The order concludes that Mr. Jensen failed to sufficiently state a cause of action and dismisses the complaint with prejudice.

First, we note that the court's findings regarding Mr. Jensen's responsiveness cannot serve as a basis for dismissal in the absence of consideration of Kozel factors, nor does the record show such aggravating factors as would justify the ultimate sanction of dismissal based on the plaintiff's conduct. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993) ; Deutsche Bank Nat'l Tr. Co. v. Waldorf, 92 So. 3d 857, 858 (Fla. 2d DCA 2012).

Next, we consider the court's statement that the complaint remains "vague and abstract."

[W]here a complaint contains sufficient allegations to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant can intelligently answer the same, it is error to dismiss the action on the ground that more specific allegations are required. ... A motion to dismiss a complaint for failure to state a cause of action does not reach defects of vague and ambiguous pleading.

Meadows Cmty. Ass'n v. Russell-Tutty, 928 So. 2d 1276, 1278 (Fla. 2d DCA 2006) (alterations in original) (quoting Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563, 565 (Fla. 1971) ); see also Student Loan Mktg. Ass'n v. Morris, 662 So. 2d 990, 992 (Fla. 2d DCA 1995) ("To the extent it can be argued that the allegations contained in the appellant's amended complaint are vague and ambiguous, it must be remembered that a motion to dismiss a complaint for failure to state a cause of action does not reach the defects of vague and ambiguous pleadings."). Thus, for example, combining two theories of relief into one count is not a sufficient basis for dismissing a complaint. Meadows Cmty. Ass'n, 928 So. 2d at 1278.

While not a model of succinct clarity, we cannot say that Mr. Jensen's fifth amended complaint is insufficient "to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant can intelligently answer the same." Id. To state a cause of action for declaratory relief challenging the validity of a statute or ordinance, the test is not whether the plaintiff will ultimately be successful: "[T]o activate jurisdiction the party seeking a declaration must show that he is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed," and "the plaintiff must show a bona fide, actual, present, and practical need for the declaration." See Wilson v. County of Orange, 881 So. 2d 625, 631 (Fla. 5th DCA 2004) (quoting X Corp. v. Y Person, 622 So. 2d 1098, 1101 (Fla. 2d DCA 1993) ).

The fifth amended complaint contains claims for declaratory relief challenging a county ordinance and, as compared to the third amended complaint, identifies specific activities Mr. Jensen believes to be permitted by statutory and constitutional provisions but prohibited by the county ordinance. In short, Mr. Jensen added legal and factual specificity to address the concerns noted in Jensen I, and the order dismissing the fifth amended complaint with prejudice does not discuss why the complaint as amended fails to state a cause of action or why it is "vague and abstract."⁴ "A circuit court is not always required to state its reasoning with particularity, but the appellate review process is more effective when it does." News-Press Publ'g Co., 738 So. 2d at 1001. We conclude that the basis stated in the order of...