Volpicella v. Volpicella, No. 2732

CourtCourt of Appeal of Florida (US)
Writing for the CourtALLEN; SHANNON, C. J., and WHITE
Citation136 So.2d 231
PartiesMaria Grazio VOLPICELLA, Appellant, v. Frank VOLPICELLA, Appellee.
Docket NumberNo. 2732
Decision Date03 January 1962

Page 231

136 So.2d 231
Maria Grazio VOLPICELLA, Appellant,
v.
Frank VOLPICELLA, Appellee.
No. 2732.
District Court of Appeal of Florida, Second District.
Jan. 3, 1962.

Frederick A. Resnick, Davie, for appellant.

No brief filed in behalf of appellee.

ALLEN, Judge.

Appellant, plaintiff in the lower court, has appealed from an order granting defendant's motion to dismiss without have to amend. The order appealed from does not set out any grounds for which dismissal was granted. However, the motion to which said order was in response stated (1) that the complaint failed to state a cause of action; (2) that the complaint alleged conclusions of the pleader without

Page 232

setting forth any facts to form a basis for said conclusions; and (3) that the complaint affirmatively shows that the plaintiff has been guilty of laches.

The complaint in this case was styled as a bill in the nature of a bill of review. In her bill, appellant sought to have a 1958 divorce decree awarded to her husband, the appellee, set aside based on various allegations of fraud in connection with the procurement of said prior decree.

The only assignments of error strenuously argued by appellant go to the lower court's denial of leave to amend and any predicate for the dismissal founded in the doctrine of laches.

We must reverse the lower court for dismissing the complaint without leave to amend. The cause was disposed of upon appellee's motion to dismiss and no responsive pleading had yet been filed. Under F.R.C.P. 1.15, 30 F.S.A., 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. Especially is this true in light of the liberality with which the question of amendments generally is now viewed in this state. See generally, Slavin v. McCann Plumbing Co., Fla.1954, 73 So.2d 902; Fouts v. Margules, Fla.App.1957, 98 So.2d 394; Richards v. West, Fla.App.1959, 110 So.2d 698.

The next question to which this appeal is directed is could the lower court properly have grounded its order of dismissal on laches? Under F.R.C.P. 1.8(d), pleadings of laches, statute of limitations, res judicata, etc., are affirmative...

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8 practice notes
  • Boca Burger, Inc. v. Forum, No. SC01-1830.
    • United States
    • United States State Supreme Court of Florida
    • 29 septembre 2005
    ...Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001), which expressly and directly conflicts with Volpicella v. Volpicella, 136 So.2d 231, 232 (Fla. 2d DCA 1962). The conflict concerns whether a trial court has discretion to deny a plaintiff leave to amend the complaint once befor......
  • Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005), Case No. SC01-1830.
    • United States
    • Florida Supreme Court
    • 7 juillet 2005
    ...Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001), which expressly and directly conflicts with Volpicella v. Volpicella, 136 So. 2d 231, 232 (Fla. 2d DCA 1962). The conflict concerns whether a trial court has discretion to deny a plaintiff leave to amend the complaint once bef......
  • Orbe v. Orbe, No. 94-1123
    • United States
    • Court of Appeal of Florida (US)
    • 17 mars 1995
    ...(Fla. 2d DCA 1984); Ayers v. Home Owners Association of Killearn Estates, 360 So.2d 1326 (Fla. 1st DCA 1978); Volpicella v. Volpicella, 136 So.2d 231 (Fla. 2d DCA 1962). In this case, it is clear the petition could have been corrected by the inclusion of the language "immediately prior to f......
  • Nenow v. Ceilings & Specialties, Inc., No. 3311
    • United States
    • Court of Appeal of Florida (US)
    • 1 mars 1963
    ...before a responsive pleading is filed is absolute and, in this regard, adhere to our opinion in Volpicella v. Volpicella, Fla.App.1962, 136 So.2d 231. In the Volpicella case, supra, we held that the right granted by Rule 1.15 terminated with a judgment of dismissal and that subsequent amend......
  • Request a trial to view additional results
8 cases
  • Boca Burger, Inc. v. Forum, No. SC01-1830.
    • United States
    • United States State Supreme Court of Florida
    • 29 septembre 2005
    ...Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001), which expressly and directly conflicts with Volpicella v. Volpicella, 136 So.2d 231, 232 (Fla. 2d DCA 1962). The conflict concerns whether a trial court has discretion to deny a plaintiff leave to amend the complaint once befor......
  • Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005), Case No. SC01-1830.
    • United States
    • Florida Supreme Court
    • 7 juillet 2005
    ...Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001), which expressly and directly conflicts with Volpicella v. Volpicella, 136 So. 2d 231, 232 (Fla. 2d DCA 1962). The conflict concerns whether a trial court has discretion to deny a plaintiff leave to amend the complaint once bef......
  • Orbe v. Orbe, No. 94-1123
    • United States
    • Court of Appeal of Florida (US)
    • 17 mars 1995
    ...(Fla. 2d DCA 1984); Ayers v. Home Owners Association of Killearn Estates, 360 So.2d 1326 (Fla. 1st DCA 1978); Volpicella v. Volpicella, 136 So.2d 231 (Fla. 2d DCA 1962). In this case, it is clear the petition could have been corrected by the inclusion of the language "immediately prior to f......
  • Nenow v. Ceilings & Specialties, Inc., No. 3311
    • United States
    • Court of Appeal of Florida (US)
    • 1 mars 1963
    ...before a responsive pleading is filed is absolute and, in this regard, adhere to our opinion in Volpicella v. Volpicella, Fla.App.1962, 136 So.2d 231. In the Volpicella case, supra, we held that the right granted by Rule 1.15 terminated with a judgment of dismissal and that subsequent amend......
  • Request a trial to view additional results

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