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May 27, 2016 by admin

Civil procedure — Trial court erred in granting motion to dismiss without allowing plaintiff opportunity to amend complaint where no responsive pleading had been filed — Motion to dismiss was not a responsive pleading

41 Fla. L. Weekly D1238aTop of Form

Civil
procedure — Trial court erred in granting motion to dismiss without allowing
plaintiff opportunity to amend complaint where no responsive pleading had been
filed — Motion to dismiss was not a responsive pleading

NINA SOLONENKO, Appellant, v. VOGUE PROPERTIES, LLC,
Appellee. 4th District. Case No. 4D15-2065. May 25, 2016. Appeal from the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J.
Murphy III and Cynthia G. Imperato, Judges; L.T. Case No. 14-19075 (21).
Counsel: Andrey Solonenko, Miramar, for appellant. Gerald Schilian of Schilian
& Watarz, P.A., Boca Raton, for appellee.

(PER CURIAM.) Appellant challenges the trial court’s order
granting appellee’s motion to dismiss the action, arguing it erred in failing
to allow her to amend her complaint. We agree with appellant and reverse. “A
party may amend a pleading once as a matter of course at any time before a
responsive pleading is served . . . .” Fla. R. Civ. P. 1.190(a). A motion to
dismiss is not a responsive pleading. Boca Burger, Inc. v. Forum, 912
So. 2d 561, 567 (Fla. 2005).

Appellant brought a quiet title action against appellee.
Appellee did not file a responsive pleading, but did file a motion to dismiss.
The trial court granted the motion and dismissed the action with prejudice.
Appellant moved for rehearing, arguing she had the right to amend her complaint
once as a matter of right. The trial court denied her motion without allowing
her to amend the complaint. This was error. See Thompson v. Publix
Supermarkets, Inc.
, 615 So. 2d 796, 797 (Fla. 1st DCA 1993) (holding trial
court erred by failing to allow appellant to amend complaint, where such relief
was sought in motion for rehearing). While appellee argues amendment of the
complaint would be futile, appellant has the right to amend her complaint, even
if
it appears likely that the amended complaint would be meritless. See
Unrue v. Wells Fargo Bank, N.A.
, 161 So. 3d 536, 537 (Fla. 5th DCA 2014).
Accordingly, we reverse.

Reversed. (STEVENSON, DAMOORGIAN and LEVINE,
JJ., concur.)

* *
*

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