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Florida Third DCA holds that trial court erred in refusing to allow plaintiff to make a second amendment to complaint

On April 12, 2017, in Annex Industrial Park, LLC v. City of Hialeah, No. 3D16-1536, the Florida Third DCA reversed the trial court’s dismissal of plaintiff’s complaint, holding that the trial court had erred in not allowing the plaintiff to make a second amendment to the complaint. The plaintiff had amended the original complaint and then sought unsuccessfully to make a further amendment in an ore tenus motion made during a hearing on the defendant’s motion to dismiss. On appeal, the Third DCA cited Fla. R. Civ. P. 1.190(a)’s provision that “leave of court [to amend a pleading] shall be given freely when justice so requires.” The Court went on to note that while there is no “magic number” for permissible amendments, the amendment should have been allowed in this case where the complaint had previously been amended only once, quoting Osborne v. Delta Maintenance and Welding, Inc., 365 So. 2d 425, 427 (Fla. 2d DCA 1978) for the proposition that “[l]eave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable.”

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