Wackenhut Corp. v. Eastern Airlines, Inc.

PER CURIAM.

Wackenhut appeals from an order dismissing its counterclaim with prejudice.

We affirm the order of dismissal but hold that the dismissal should have been without prejudice to permit Wackenhut to exercise any rights it may have in a direct action against the real party in interest or against Eastern Airlines in a bankruptcy court. See Miller v. Greene, 104 So.2d 457 (Fla.1958) (defendant should be given opportunity to amend counterclaim prior to dismissal with prejudice regardless of whether defendant moved to amend); Unitech Corp. v. Atlantic Nat. Bank of Miami, 472 So.2d 817 (Fla. 3d DCA 1985) (dismissal with prejudice premature where amendment privilege was not abused and no conclusive showing that defective complaint could not be cured).

Affirmed in part and reversed in part.