Thompson v. McNEILL COMPANY INC. , 10 Fla. L. Weekly 556 ( 1985 )

464 So. 2d 244 (1985)

Elijah THOMPSON, Appellant,
v.
McNeill COMPANY, INC., Appellee.

No. AZ-77.

District Court of Appeal of Florida, First District.

March 5, 1985.

Edwin A. Green, II, Tallahassee, for appellant.

J. Craig Knox, of Fuller & Johnson, P.A., Tallahassee, for appellee.

WIGGINTON, Judge.

The trial court dismissed with prejudice appellant's first amended complaint. Appellant argues that the trial court erred in doing so, as the amended complaint alleged sufficient ultimate facts to state a cause of action. Alternatively, appellant contends that the court abused its discretion in dismissing the complaint without leave to amend. We affirm the order of dismissal, but since the complaint has been amended only once, and there has been no showing either that appellant has abused the privilege to amend or that the complaint is clearly not amendable, we hold that the trial court did abuse its discretion and direct that the order of dismissal be revised to reflect dismissal of the complaint "without prejudice." Adams v. Knabb Turpentine Company, Inc., 435 So. 2d 944 (Fla. 1st DCA 1983); Wiggins v. Tart, 407 So. 2d 1094 (Fla. 1st DCA 1982).

THOMPSON, J., concurs.

WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge, dissenting.

I would find that the complaint is not fatally deficient and would therefore reverse and remand for further proceedings.