DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARLINE AMIACHE,
Appellant,
v.
ISLAND TOWERS, INC., a condominium association,
and CASEY JOHNSON,
Appellees.
No. 4D22-1692
[August 2, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2020-CA-
003957-XXXX-MB.
E. Cole FitzGerald, III of E. Cole FitzGerald, III PLLC, Palm Beach, for
appellant.
Michael A. Rosenberg of Cole, Scott & Kissane, P.A., Plantation, for
appellees.
DAMOORGIAN, J.
Appellant, Marline Amiache, appeals the final order dismissing her
action against Island Towers, Inc. (“the Association”) and its president
Casey Johnson (“the President”) (collectively “Defendants”). Because the
trial court dismissed the action under the mistaken belief that no further
judicial action was required, we reverse the dismissal order and remand
for further proceedings.
Appellant owns a condominium unit at Island Towers and is a member
of the Association. In 2020, Appellant filed a five-count complaint against
the Association, the President, and four association board directors.
The five counts included: (1) negligent breach of fiduciary duty (against the
President and directors); (2) intentional breach of fiduciary duty (against
the President and directors); (3) intentional infliction of emotional distress
(against the President); (4) failure to comply with Florida law (against the
Association); and (5) declaratory and injunctive relief (against the
Association).
The claims against the directors were ultimately dismissed with
prejudice, and the claims against the Association and the President were
dismissed without prejudice. The dismissal order included the following
relevant language:
As to Counts 1, 2, 4, and 5, Plaintiff is required to comply with
mandatory Chapter 617 derivative pre-suit requirements.
Plaintiff must provide a demand to the Association and allow
the 90-days prescribed by Chapter 617 for the Association to
conduct an investigation and provide its findings. Plaintiff has
leave to amend Counts 1, 2, 4, and 5 only against the
Association and [the President], once she has complied with
all the pre-suit requirements of a derivative lawsuit under
Chapter 617 of the Florida Statutes. The claims against
[the President] on these counts must allege sufficient ultimate
facts to create individual liability on his part.
As to Count 3 [intentional infliction of emotional distress],
Plaintiff has twenty (20) days from July 27, 2020, to file an
Amended Complaint against [the President].
Appellant thereafter appealed the portion of the order dismissing her
claims with prejudice against the directors only. This Court later affirmed
the order via per curiam opinion. Amiache v. Blick, No. 4D20-1897, 2021
WL 6141059 (Fla. 4th DCA Dec. 30, 2021). The opinion’s case caption
lists only the four directors as the appellees. See id.
While the appeal was pending, Appellant filed an amended two-count
complaint against the President only for breach of fiduciary duty and
intentional infliction of emotional distress. The President moved to
dismiss the amended complaint, which the trial court granted. Regarding
the intentional infliction of emotional distress count, the court provided
Appellant until January 29, 2021, to file a second amended complaint.
The order did not contain a warning of the consequences for failing to
timely file a second amended complaint regarding that count. Regarding
the breach of fiduciary duty count, the court struck the count and gave
Appellant “leave to amend Count I for Breach of Fiduciary Duty Against
[the President], once she has complied with all the pre-suit requirements
of a derivative lawsuit under Chapter 617 of the Florida Statutes.” Aside
from stating Appellant could amend the complaint after complying with
the pre-suit requirements, the order did not set a deadline as to when the
complaint had to be amended. It is undisputed that Appellant never filed
a second amended complaint.
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On November 22, 2021, after no record activity occurred in the case for
a period of over ten months, the trial court issued a “Notice of Lack of
Prosecution, Court’s Motion to Dismiss, and Order Setting Hearing.” The
notice provided that if no record activity occurred within sixty days
following service of the notice, the action would be dismissed. In the event
there was a filing within the sixty days, the notice ordered all parties to
attend a mandatory status conference on February 11, 2022. Within the
sixty-day timeframe, Appellant filed a motion to depose.
The matter proceeded to a mandatory status conference as scheduled.
Following the conference, the trial court entered an order titled “Order of
Dismissal from Lack of Prosecution Hearing, Order Directing the Clerk to
Close the File and Order Directing Clerk to Place in a Reopen Status.”
In relevant part, the order states: “the Court finds the Plaintiff’s Complaint
has been previously dismissed by separate order. The Court takes judicial
notice the Fourth District Court of Appeal issued a mandate on January
21, 2022, affirming the Court’s prior ruling. It appears no further judicial
action is required.” The order does not specifically reference rule 1.420(e),
make any findings regarding whether the motion to depose constitutes
record activity, or include any findings regarding Appellant’s failure to file
a second amended complaint.
We reverse the dismissal order as it appears the trial court dismissed
the action solely based on the mistaken belief that this Court’s mandate
in case 4D20-1897 applied to Defendants and that therefore no further
judicial action was required. This was error as our mandate only applied
to the claims against the four directors. In light of this mistaken belief,
and the fact that the trial court did not otherwise make any findings
regarding whether the motion to depose constituted record activity under
rule 1.420(e), we are compelled to reverse.
Defendants nonetheless argue this Court should affirm because
Appellant failed to “file a second amended complaint in contravention of
the Court’s order dated November 23, 2020,” and cite to cases discussing
a court’s discretion to dismiss complaints for non-compliance with court
orders. To the extent Defendants seemingly suggest the trial court
dismissed the action as a sanction for failing to file a second amended
complaint, we reject this argument as the record does not indicate the
court dismissed the action as a sanction. Moreover, the trial court could
not dismiss the action as a sanction for failure to file a second amended
complaint without first providing Appellant with notice of its intent to
consider imposing sanctions for this reason, which the court in this case
did not do. See NYC Constr. Grp., Inc. v. Jerome, 333 So. 3d 790, 793 (Fla.
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4th DCA 2022); List v. St. Petersburg Hotel Ass’n, 466 So. 2d 1258, 1260
(Fla. 2d DCA 1985) (“[O]nce a court has dismissed a complaint for failure
to state a cause of action, but has granted the party leave to amend, the
court may subsequently dismiss an unamended complaint with prejudice
for its continuing failure to state a cause of action upon proper notice to the
plaintiff.” (emphasis added)).
Reversed and remanded.
WARNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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