IN THE FOURTH DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA CASE NO. 4DCA#: 13-3796 L.T. Case No. 502011CPOOCP005095XXXXSB JASON HALLE, Appellant, v. PETER HALLE, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA APPELLANT'S REPLY BRIEF Jason Halle prose 209 NW 21 st Court Wilton Manors, FL 33311 Tel: 954-654-8150 Fax: 954-653-1513 [email protected]
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IN THE FOURTH DISTRICT COURT OF APPEALFOR THE STATE OF FLORIDA
CASE NO. 4DCA#: 13-3796
L.T. Case No. 502011CPOOCP005095XXXXSB
JASON HALLE,Appellant,
v.
PETER HALLE,Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF THE FIFTEENTHJUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA
APPELLANT'S REPLY BRIEF
Jason Halleprose209 NW 21 st CourtWilton Manors, FL 33311Tel: 954-654-8150Fax: [email protected]
Waterproofing, Inc. v. Bogard, 488 So. 2d 672,673 (Fla. 4thDCA 1986)."
In Gladstone v. Smith, it was also pointed out on page 1004, that, "Gladstone
amended his complaint 10 times in this case."
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In Eagletech Communications, Inc. v. Bryn Marr Inv. Group, Inc., 79 So. 3d
855,866 (Fla. 4th DCA 2012) which was cited by the Appellee, the case goes on to
state in the conclusion on pages 866 and 867, "We affirm the trial court's ruling
dismissing Eagletech's Fifth Amended Complaint for failure to state a cause of
action. We find, however, that based on the orders of the previous trial judges
denying similar motions to dismiss the third amended and fourth amended
complaints, the trial court erred in dismissing the Fifth Amended Complaint with
prejudice. Accordingly we reverse the trial court's order to the extent that it
dismisses the Fifth Amended Complaint with prejudice and remand this cause to
the trial court with instructions to allow appellant leave to amend its complaint."
On page 13 of the Appellee's Answer Brief he quotes liberally from Thomas
v. Pridgen, 549 So. 2d 1195, 1196-97 (Fla. 1st DCA 1989). However, the Appellee
neglected to quote from page 1197, "The order dismissing the second amended
complaint with prejudice is reversed and this cause is remanded for further
proceedings consistent with this opinion. REVERSED"
On page 14 of the Appellee's Answer Brief he misquotes from Town of
Micanopy v. Connell, 304 So. 2d 478, (Fla. 1st DCA 1974). On page 480 of the
citation the Appellee quotes, "generally interpreted to allow a plaintiff to amend
his complaint one time in an attempt to state a cause of action". In fact the quote
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was: "generally interpreted to allow a plaintiff to at least amend his complaint one
time in an attempt to state a cause of action". Emphasis added to the missing words
of the Appellee's quote.
In Town of Micanopy v. Connell, on page 480 it goes on to state, "While the
trial court was correct in its dismissal of the complaint, it was an abuse of
discretion not to allow appellant to amend.
Reversed with directions to enter an order allowing appellant a reasonable
time to file an amended complaint."
On page 15 of the Appellee's Answer Brief he states that in Kozich v.
Kozokoff, 945 So. 2d 533 (Fla. 4th DCA 2006) the Court affirmed a dismissal with
prejudice. But the Appellee neglected to state that on the same page, "Appellant,
pro se, submitted a thirty-seven page complaint plus attachments, which the trial
court dismissed without prejudice to re-file a more concise complaint."
Between April 16, 2013, and May 28,2013, I spent many days in the
Shepard Broad Law Center Library of Nova University studying the law and
particularly trying to learn how to write a complaint. I then realized that my Fourth
Amended Complaint would not stand up in court.
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No wonder the Appellee was so quick to give his written consent to allow
the Fourth Amended Complaint.
I undertook the task of writing a new complaint which I believed would
satisfy the requirements of Rule 1.11O(b) of the Florida Rules of Civil Procedure.
On May 28,2013, I made a motion to obtain leave of the court to amend my
Fourth Amended Complaint (R. 711-712) with a Fifth a Fifth Amended Complaint
(R. 713-762). This time the Appellee had no interest in giving his written consent
to allow it. Instead the Appellee fought this amendment vigorously.
On June 11,2013, at a hearing before Judge David French the Appellee
argued against allowing my amendment. Since I believed the Court would grant its
leave to amend, I did not arrange for a court reporter at this hearing. When Judge
French informed me that he was not going to give the court's leave to file the
amendment, I was surprised. I, however, was not overly concerned because I
recollect that Judge French assured me that there would be time to amend later if it
was necessary. CR.781)
On August 28,2013, there was a hearing on the Fourth Amended Complaint.
On September 25,2013, Judge David French signed an Order dismissing the
Fourth Amended complaint with prejudice.
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In 22 months and 9 days I successfully amended my complaint only 3
times. The first time was as my right according to Rule 1.190(a) of the Florida
Rules of Civil Procedure and the second and third times were with the written
consent of the Appellee. Before the hearing on September 25, 2013, not one of
my complaints had ever been dismissed for failure to state a cause of action or
any other reason.
CONCLUSION
"Pleadings should be reviewed during the progress of an action to assure that
all causes of action or defenses are being asserted. New causes of action or
defenses may be developed by discovery. If they are discovered, a prompt motion
to amend should be made." Henry P. Trawick, Jr., Florida Practice and Procedure
§ 14:9 (2014).
Despite the fact that the Appellee claims that my amendments were an
abuse, all of my successful amendments were made with the Appellee's written
consent or by Rule 1.190(a) of the Florida Rules of Civil Procedure.
Iwas not granted leave of the court to amend as a result of the only
dismissal for failure to state a cause of action.
"A complaint that fails to state a cause of action should be dismissed without
prejudice so that the plaintiff can cure the deficiency by filing an amended
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complaint. The appellate courts have said that the dismissal of a compliant with
prejudice runs contrary to the policy of allowing amendments so that controversies
can be decided on the merits. Unless it appears that the privilege to amend has
been abused or that the compliant is clearly untenable, the trial judge should not
dismiss a complaint with prejudice. This rule applies even if the court has
previously granted an opportunity to amend the complaint. If the plaintiff might be
able to allege additional facts, or if the ultimate facts alleged may support relief
based upon another theory of liability, it would be an abuse of discretion to dismiss
the complaint with prejudice." Page 229, Philip J. Padovano, Florida Civil Practice
§ 7:10 (2014).
"Generally, the sufficiency of the allegations contained in a complaint ... is
tested by a motion to dismiss. If the pleading fails to state a cause of action, the
trial judge should dismiss with leave to amend. If after amendment the pleading
still fails to state a cause of action, a motion to dismiss should be filed again.
There is no magical number of dismissal amendments that will be allowed, but
a dismissal with prejudice is generally not an abuse of discretion after amendments
beyond the third attempt." Page 9-4, Juan Ramirez, Jr., Florida Civil Procedure, §
9-1(a) (3rd ed. 2013).
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Multiple motions to dismiss were never granted in this action. Only one
motion to dismiss was granted with no opportunity to amend.
As stated in Dryden Waterproofing, Inc. v. Bogard, 488 So. 2d 672,673 (Fla.
4thDCA 1986), "We recognize the oft stated feeling among some members of the
bench and bar that three unsuccessful attempts at stating a cause of action should
be sufficient (three strikes and you're out). However, the rule, more accurately
stated, is that leave to amend a complaint should be freely granted when justice so
requires and it should not be denied unless the privilege has been abused or it is
clear the pleading cannot be amended to state a cause of action."
I pray for relief from this Honorable Court. I pray the Court will reverse in
part and remand with directions to the Lower Court to allow me, the Appellant, a
reasonable amount of time to amend my complaint, plus any other relief that this
Honorable Court may deem just and proper.
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Respectfully submitted,
JASON HALLE, pro se209 NW 21 st CourtWilton Manors, FL 33311Tel: 954-654-8150Fax: [email protected]
By:
~~
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing, Appellant'sReply Brief, has been furnished by electronic mail to: Michael J. Napoleone,[email protected], One Clearlake Centre, Suite 1504,250Australian Avenue South, West Palm Beach, FL 33401, this 6th day of March,2014.
CERTIFICATE OF COMPLIANCE
I HEREBY CERIFY that this brief was prepared in Times New Roman, 14 pointfont and complies with the provisions of Rule 9. 120(a)(2) of the Florida Rules ofAppellate Procedure.