Tucker v. Bray, 84-313

• Decision Date: 07 November 1984
• Docket Number: No. 84-313,84-313
• Citation: 458 So.2d 841
• Parties: Joseph TUCKER, Appellant, v. Garlan Eugene BRAY, Appellee.
• Court: Florida District Court of Appeals

Page 841

458 So.2d 841

Joseph TUCKER, Appellant, v. Garlan Eugene BRAY, Appellee.

No. 84-313.

District Court of Appeal of Florida, Second District.

Nov. 7, 1984.

Joseph Tucker, pro se.

Glenn T. Shelby, Law Offices of James S. Welch, Lakeland, for appellee.

DANAHY, Judge.

The appellant filed a complaint against the appellee sounding in tort. The appellee responded with a motion to dismiss with prejudice and a request for attorney's fees pursuant to section 57.105, Florida Statutes (1983). The trial judge granted the motion, dismissing the complaint with prejudice and awarding fees of $500. This appeal followed.

We hold that the trial judge abused his discretion in failing to give the appellant at least one chance to amend his complaint. Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980); Ayers v. Home Owners Association of Killearn Estates, 360 So.2d 1326 (Fla. 1st DCA 1978).

Accordingly, the order of dismissal and award of attorney's fees is reversed and this case is remanded to the trial court with directions that the appellant be allowed a reasonable time within which to amend his complaint.

REVERSED and REMANDED.

BOARDMAN, A.C.J., and LEHAN, J., concur.