final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 11-3323 Mavel Ruiz and Antonio Marin, Judges.
Alan Orth (Hollywood), for appellant.
Rodriguez IV; Alvarez | Gonzalez | Menezes, LLP and Ignacio
M. Alvarez, for appellees.
FERNANDEZ, SCALES and HENDON, JJ.
plaintiff, Pangea Produce Distributors, Inc.
("Pangea"), appeals the trial court's final
order denying Pangea's Motion for Leave to File a Third
Amended Complaint. Following a review of the record, we find
that the circuit court abused its discretion in denying
Pangea leave to amend. Thus, we reverse the final order
denying Pangea's Motion to Amend.
2011, Pangea filed a single-count complaint against Carlos
Franco and his corporation, Franco's Produce, Inc.
(collectively, "Franco"), alleging that the parties
entered into a verbal joint venture involving the sale of
produce in Miami-Dade County between April 2010 and December
2010. In August 2012, Pangea moved for leave to amend to add
Perishable Agricultural Commodities Act ("PACA")
claims. After the case was set for trial in August 2015,
Pangea decided to drop its PACA claim and moved the Court,
ore tenus, to amend once again. The motion was
granted and, on August 24, 2015, Pangea filed its Second
Amended Complaint. The Second Amended Complaint contained
five counts based on the same alleged transaction, but added
that the alleged verbal joint venture was for a trial period
of three to six months, terminable by either party.
August 27, 2015, Franco filed a joint Motion to Dismiss
Pangea's Second Amended Complaint. Mr. Franco argued that
the Second Amended Complaint was "legally
insufficient" as to him individually, and Franco's
Produce requested dismissal of the Complaint as to Count II
(Open Account), Count III (Account Stated), and Count IV
(Unjust Enrichment), based on technicalities. Franco also
argued that when the Second Amended Complaint was filed,
Pangea departed from the pleadings by adding allegations of
fact, namely regarding the alleged short-term trial period
and termination option.
November 3, 2015, the circuit court heard Franco's Motion
to Dismiss Pangea's Second Amended Complaint. The Court
entered an order granting Franco's Motion to Dismiss with
prejudice. Pangea filed a Motion for Reconsideration or
Clarification, arguing that it was error to dismiss the
entire Complaint, as Franco's Motion to Dismiss did not
articulate any proper argument in favor of dismissal of
Counts I (Breach of Joint Venture/Partnership Agreement
Terminable at Will) or Count V (Breach of Contract), and the
court's dismissal of the Second Amended Complaint was
based on the defense argument that Pangea had re-alleged and
incorporated certain prior paragraphs into Counts II, III,
and IV that contradicted those causes of action, but which
Pangea argued could be easily cured. Contemporaneously,
Pangea filed a Motion for Leave to File a Third Amended
Complaint, with a proposed Third Amended Complaint to correct
the minor deficiencies attached.
March 21, 2017, the circuit court denied the Motion for
Rehearing and the Motion for Leave to Amend. Believing that
this was a final order, Pangea appealed. That appeal was
dismissed upon a determination that the order then under
review was not a final order. Subsequently, a final order was
entered, and Pangea timely filed this appeal.
Court has jurisdiction to review final orders of trial courts
not directly reviewable by the Florida Supreme Court or a
circuit court pursuant to Florida Rule of Appellate Procedure
9.030(b)(1)(A). The standard of review for the denial of
leave to amend is abuse of discretion. Datwani v.
Netsch, 562 So.2d 721, 723 (Fla. 3d DCA 1990).
Rule of Civil Procedure 1.190(a), provides that leave to
amend "shall be given freely when justice so
requires." Typically, refusal to allow amendment of a
pleading constitutes an abuse of discretion unless allowing
the amendment "would prejudice the opposing party, the
privilege to amend has been abused, or amendment would be
futile." JVN Holdings, Inc. v. Am. Constr. &
Repairs, 185 So.3d 599, 601 (Fla. 3d DCA 2016) (quoting
Kay's Custom Drapes, Inc. v. Garrote, 920 So.2d
1168, 1171 (Fla. 3d DCA 2006)). While the policy in Florida,
as articulated in Rule 1.190(a), is to allow amendments to
pleadings liberally, "a trial judge in the exercise of
sound discretion may deny further amendments where a case has
progressed to a point that liberality ordinarily to be
indulged has diminished." Alvarez v. DeAguirre,
395 So.2d 213, 216 (Fla. 3d DCA 1981) (explaining that in
addition to the desirability of allowing amendments to
pleadings so that cases may be concluded on their merits,
there is an equally compelling obligation on the court to see
to it that the end of all litigation be finally reached).
Although the number of amendments is not determinative of
abuse, three ineffective attempts to state the same cause of
action or defense are enough, and the liberality in
permitting amendments decreases as the action progresses and
as the number of amended pleading increases. Id. at
present case, there has been no showing that granting leave
to amend the complaint would prejudice Franco or that the
amendment would be futile. There is no support for the notion
that Pangea has abused the privilege to amend given that
Pangea has only amended twice before. Franco cites to
Alvarez for the proposition that dismissal of a
complaint after three ineffective attempts at proper
pleadings is not deemed abuse of discretion. However, in
Alvarez the plaintiff had six opportunities to
present a proper pleading and failed to do so. Unlike in
Alvarez, Pangea has only amended twice before and is
only now seeking a third opportunity to present a proper
pleading. Thus, ...