Third District Court of Appeal
State of Florida
Opinion filed August 31, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-225
Lower Tribunal No. 21-10054
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Impulsora de Productos Sustentables,
S.A.P.I. de C.V.,
Appellant,
vs.
Senen Daniel Garcia, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Hanzman, Judge.
Law Office of Alan I. Karten, PLLC, and Alan I. Karten (Boynton
Beach), for appellant.
Kaplan Zeena LLP, and James M. Kaplan, Robin Corwin Campbell
and Maria Kimijima, for appellee Senen Daniel Garcia.
Before SCALES, HENDON and GORDO, JJ.
GORDO, J.
Impulsora de Productos Sustentables S.A.P.I. de C.V. (“Impulsora”)
appeals a final order dismissing its amended complaint against Senen Daniel
Garcia (“Garcia) with prejudice. We have jurisdiction. Fla. R. App. P.
9.030(b)(1)(A). Because the trial court did not make a finding of futility and
Impulsora requested leave to amend its pleading, we reverse.
In April 2021, Impulsora filed an initial complaint against Garcia and
various parties alleging among other claims, conversion. Garcia
subsequently filed a motion to dismiss. The trial court held a case
management conference where Impulsora made an ore tenus motion for
leave to amend its complaint, which the trial court granted. Impulsora
thereafter filed its second amended complaint.1 Garcia subsequently filed a
motion to dismiss alleging the operative complaint failed to state a claim for
conversion.
Impulsora filed a written response requesting leave to amend should
the trial court find the motion was well taken. At the hearing on Garcia’s
motion to dismiss, the trial court specified it would reschedule argument for
the following week and allow arguments as to whether Impulsora wanted
1
Impulsora titled its first filed complaint as “Complaint” and titled its second
filed complaint as “First Amended Complaint.”
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leave to amend its complaint. Instead, the trial court issued a final order
dismissing Impulsora’s operative complaint with prejudice.
Florida Rule of Civil Procedure 1.190(a), provides leave to amend
“shall be given freely when justice so requires.” “[R]efusal to allow an
amendment is an abuse of the trial court’s discretion ‘unless it clearly
appears that allowing the amendment would prejudice the opposing party,
the privilege to amend has been abused, or amendment would be futile.’”
JVN Holdings, Inc. v. Am. Const. & Repairs, LLC,
185 So. 3d 599, 601 (Fla.
3d DCA 2016) (quoting Kay’s Custom Drapes, Inc. v. Garrote,
920 So. 2d
1168, 1171 (Fla. 3d DCA 2006)).
While we commend the trial court for its well-articulated six-page order
and find no error in its determination that the complaint failed to state a cause
of action for conversion, we reverse and remand to allow Impulsora leave to
amend its complaint. The record establishes the trial court did not make a
finding that future amendment would be futile, prejudice the opposing party
or that Impulsora had abused its privilege to amend. See Alvarez v.
DeAguirre,
395 So. 2d 213, 217 (Fla. 3d DCA 1981) (“‘[G]enerally three
ineffective attempts to state the same cause of action or defense are
enough,’ and the ‘liberality in permitting amendments decreases as the
action progresses and as the number of amended pleading increases.’”)
3
(citation omitted); Pangea Produce Distribs., Inc. v. Franco’s Produce, Inc.,
275 So. 3d 240, 242 (Fla. 3d DCA 2019) (finding the trial court abused its
discretion because plaintiff had “only amended twice before and [wa]s only
now seeking a third opportunity to present a proper pleading.”); JVN
Holdings, Inc., 185 So. 3d at 601 (“On remand, and in the absence of
prejudice, abuse of the privilege to amend, or futility, leave should freely be
given to amend the [pleading]. . . .”).
Reversed and remanded with instructions.
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