Thomas C. D'Alessandro, Jr. and Bernadette D'Alessandro v. Fidelity Federal Bank & Trust and PNC Bank, National Association ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THOMAS C. D’ALESSANDRO, JR., and BERNADETTE
D’ALESSANDRO,
Appellants,
v.
FIDELITY FEDERAL BANK & TRUST and PNC BANK, NATIONAL
ASSOCIATION,
Appellees.
No. 4D13-3387
[January 7, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lucy Chernow Brown, Judge; L.T. Case No.
502013CA001379XXXXMB.
Thomas C. D’Alessandro, Jr., and Bernadette D’Alessandro, Tequesta,
pro se.
Stephen J. Simmons of Mombach, Boyle, Hardin & Simmons, P.A., Fort
Lauderdale, for appellee.
MAY, J.
Homeowners appeal the dismissal of their complaint to quiet title with
prejudice. They argue the trial court erred in dismissing their original
complaint with prejudice, without an opportunity to amend.
We agree and reverse.
The homeowners filed a complaint to quiet title against Fidelity Federal
Bank & Trust, now known as PNC Bank, National Association (“the bank”),
and attached the mortgages to it.1 They alleged that although the bank
recorded the two mortgages evidencing the bank lent money to them, the
bank had no interest in their property because it had failed to prove that
it lent the money. The homeowners also alleged they made numerous
written demands to the bank requesting proof of payment, and for the
1PNC Bank is the successor by merger to National City Bank, which is successor
by merger to Fidelity Federal Bank & Trust.
bank to remove, satisfy, and release the mortgages. The bank failed to
respond to those demands. The homeowners asserted that the mortgages
represented a cloud on the title.
A few months later, the bank filed a separate foreclosure action on the
same mortgages that are the subject of the quiet title action. The bank
then moved to dismiss the quiet title action. The bank argued that the
homeowners failed to state a cause of action because the complaint failed
to allege facts to support a right to quiet title on the subject property.
Specifically, the bank argued the homeowners failed to allege a cloud on
the title.
The homeowners objected to the motion to dismiss and moved for leave
to amend the complaint. The trial court dismissed the complaint and
orally denied their request to amend. The court subsequently entered an
order of dismissal with prejudice.
In that order, the trial court indicated that the complaint’s allegations
were wholly insufficient to state a cause of action, and were devoid of any
legal theory to support the relief requested. The court also indicated that
the dismissal was without prejudice to the homeowners filing affirmative
defenses and discovery requests in the now pending foreclosure action.
The homeowners requested, and the trial court denied, reconsideration.
They now appeal the dismissal with prejudice.
The issue on appeal is a simple one: Does a plaintiff have the right to
amend a complaint once before the court dismisses an original complaint
with prejudice? The answer is also a simple one: Yes.
To state a cause of action to quiet title, the homeowners needed to allege
that (1) they had title to the subject property; (2) a cloud on the title
existed; and (3) that the cloud was invalid. Stark v. Frayer, 67 So. 2d 237,
239 (Fla. 1953). Here, the homeowners failed to allege that the bank’s
mortgage was invalid. Further, the mortgages attached to the complaint
completely negated any allegation that the mortgages were invalid. The
trial court correctly dismissed the complaint for failure to state a cause of
action.
The error came in denying the homeowners the opportunity to amend.
Rule 1.190(a) of the Florida Rules of Civil Procedure permits the
amendment of a pleading “once as a matter of course at any time before a
responsive pleading is served.” Fla. R. Civ. P. 1.190(a). “A judge’s
discretion to deny amendment of a complaint arises only after the
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defendant files an answer or if the plaintiff already has exercised the right
to amend once.” Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla.
2005) (emphasis added).
For this reason, we are compelled to reverse and remand. See also
Unrue v. Wells Fargo Bank, N.A., 39 Fla. L. Weekly D2023 (Fla. 5th DCA
Sept. 19, 2014).
Reversed and Remanded.
GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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