Turnberry Village North Tower Condominium Assoc., Inc. v. Turnberry Village South Tower Condominium Assoc., Inc. , 2017 Fla. App. LEXIS 9984 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed July 12, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1959
Lower Tribunal No. 15-17576
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Turnberry Village North Tower Condominium Association, Inc.,
Appellant,
vs.
Turnberry Village South Tower Condominium Association, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.
Egozi & Bennett and Bernard L. Egozi and Isaac S. Lew, for appellant.
Kahn & Resnik and Howard Kahn and Marcy S. Resnik (Dania), for
appellee.
Before EMAS, LOGUE and LUCK, JJ.
EMAS, J.
Appellant, Turnberry Village North Tower Condominium Association, Inc.
appeals from an order dismissing, with prejudice, its amended complaint, which
asserted a claim for aiding and abetting a breach of fiduciary duty.1 We affirm the
trial court’s order, as appellant’s amended complaint failed to set forth “a short and
plain statement of the ultimate facts showing that the pleader is entitled to relief.”
See Fla. R. Civ. P. 1.110(b). Appellant’s amended complaint contained a
mechanical recitation of the elements of the cause of action, and, in particular, only
conclusory allegations that appellee substantially assisted or encouraged the
wrongdoing. This is insufficient to withstand a motion to dismiss. See generally,
American Seafood, Inc. v. Clawson, 598 So. 2d 273 (Fla. 3d DCA 1992);
Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So. 2d 843 (Fla.
2d DCA 1986).
We reject appellant’s alternative argument that, even if the order of
dismissal was proper, we should reverse and remand to permit appellant a further
opportunity to amend the amended complaint. A plaintiff is granted the right to
amend the complaint once before a responsive pleading is filed. See Fla. R. Civ. P.
1 Aiding and abetting a breach of fiduciary duty is recognized in Florida. See
Fonseca v. Taverna Imports, Inc., 212 So. 3d 431, 442 (Fla. 3d DCA 2017) (and
cases collected). Such a claim requires a plaintiff to plead ultimate facts to
establish: 1) a fiduciary duty on the part of a primary wrongdoer; 2) a breach of
that fiduciary duty; 3) knowledge of the breach by the alleged aider and abettor;
and 4) the aider and abettor's substantial assistance or encouragement of the
wrongdoing. Id.2
1.190(a) (providing that a party may amend a pleading once as a matter of course
at any time before a responsive pleading is served); Boca Burger, Inc. v. Forum,
912 So. 2d 561, 567 (Fla. 2005) (holding that a judge’s discretion to deny
amendment of a complaint arises only after the defendant files a responsive
pleading or if the plaintiff has already exercised the right to amend once).
Appellant already exercised this right to amend when, following a dismissal
of the original complaint, it filed an amended complaint. Any further amendment
required leave of the trial court. Because appellant did not seek leave to amend at
the time of the trial court’s dismissal with prejudice of the amended complaint, or
thereafter by a motion for rehearing, Appellant has failed to preserve the issue,
precluding our consideration of the issue for the first time on appeal. Vorbeck v.
Betancourt, 107 So. 3d 1142, 1148 (Fla. 3d DCA 2012); Century 21 Admiral’s
Port, Inc. v. Walker, 471 So. 2d 544, 545 (Fla. 3d DCA 1985); Stander v. Dispoz-
O-Products, Inc., 973 So. 2d 603, 605 (Fla. 4th DCA 2008).
Affirmed.
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