Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
A dismissal was recently reversed in Miami-Dade when the circuit court on appeal determined that the county court had failed to give the Plaintiff, Landlord, an opportunity to cure a defect in the pleadings pursuant to Florida’s revised Landlord/Tenant Act, specifically Florida Statutes section 83.60(1)(a).
DIANA MARVEZ, Appellant, v. STEVEN CANDELARIA and MAYELIN CANDELARIA, Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 14-076 AP. L.T. Case No. 13-20652 CC 25. November 19, 2014. An Appeal from an order of dismissal in the County Court in and for Miami-Dade County. Counsel: Robert D. Devin, for Appellant. Helen Ann Hauser, Restani, Dittmar & Hauser, P.A., and Keith Diamond for Appellees.
(Before ZABEL, SHAPIRO, LINDSEY, JJ.)
(PER CURIAM.) Diana Marvez filed suit to evict Steven Candelaria and Mayelin Candelaria. Subsequently, the Candelarias moved to dismiss the action. The motion to dismiss was granted with prejudice and Marvez appeals.
As a preliminary matter, this Court observes that a dismissal with prejudice is a harsh determination that ends an action without addressing the merits. Dismissal with prejudice is especially harsh where the failure of the complaint is amenable to amendment. Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a].
In the present instance, the motion to dismiss sought dismissal on the grounds that Marvez’s complaint for eviction rested upon a deficient three day notice. The motion further asserted that the wrong lease agreement had been attached to the complaint. This, contend the Candelarias, required dismissal with prejudice.
Effective July 1, 2013, Florida law changed to require that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).
Based upon the foregoing, the Trial Court’s Order of Dismissal REVERSED. The cause is REMANDED to the trial court for entry of an order of dismissal without prejudice and with leave to amend pursuant to section 83.60(1)(a). The Trial Court shall assess appellate fees and costs pursuant to section 83.48, Florida Statues, to the party ultimately prevailing below. (ZABEL, SHAPIRO, LINDSEY, JJ., Concurring).
Dismissal Overturned When Landlord Not Given Opportunity to Cure Defective Notice or Pleadings.