Joel R. Kruger, the plaintiff below, appeals from an order dismissing with prejudice his claims against the defendant be
On April 15, 2011, Joel Kruger filed suit against his step-sister, Harriet Kruger, Wells Fargo Advisors, LLC and two Wells Fargo Advisors employees claiming that they manipulated a change in an insurance policy beneficiary designation form so as to deprive him of receiving benefits upon the death of the insured. He also joined the insurer, Lincoln National Corporation, for negligently paying the policy’s death benefits.
Wells Fargo and its two employees, arguing that this matter was governed by an account agreement that mandates dispute arbitration, moved to dismiss and compel arbitration. Harriet also moved to dismiss because Kruger had failed to attach a copy of the subject insurance policy to the complaint.
On September 13, 2011, the motions to compel arbitration and to dismiss were heard. There is no dispute that at that hearing the trial court orally granted Harriet’s motion to dismiss and granted Joel Kruger thirty days to file an amended complaint either attaching a copy of the insurance policy or attesting that he was not in possession of the policy. There also is no dispute that the trial court took the motion to compel arbitration under advisement, directing the parties to file additional legal memoranda. The parties do, however, dispute what happened next.
Specifically, Joel Kruger claims that having taken the arbitration issue under advisement, the trial court stated that Kruger could wait to file the amended complaint until after the court had ruled on the arbitration issue. Harriet claims that no such statement was made. No written order on either motion was ever entered.
Ten months later, in July 2013, a status hearing on the pending motion to compel arbitration was held. At that time, the trial court was advised that Joel Kruger had yet to file an amended complaint. Upon learning this, the court below sua sponte dismissed with prejudice all claims against Harriet:
By this Court’s previous ore tenus Order on September 13, 2011, Defendant HARRIET KRUGER’S Motion to Dismiss was granted. Plaintiff, Joel R. Kruger, ... was given thirty (30) days to amend the Complaint. Having failed to do so by July 17, 2012, the Court hereby dismisses, sua sponte, Plaintiffs claims against HARRIET KRUGER with prejudice.
We reverse this order for as this court explained in Sekot Labs., Inc. v. Gleason,
An order granting leave to amend permits the party to amend; it does not require it. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp.,413 So.2d 51 , 54 (Fla. 3d DCA 1982), review denied,424 So.2d 763 (Fla.1982). From a procedural standpoint, “[ojnce a court*1035 has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.” Neu v. Turgel,480 So.2d 216 , 217 (Fla. 3d DCA 1985), cause dismissed,486 So.2d 598 (Fla.1986); accord Edward L. Nezelek, Inc. v. Sunbeam Television Corp.,413 So.2d at 54-55 .
Neither circumstance occurred here. No order of dismissal was entered in this case providing that failure to amend within thirty days would result in dismissal with prejudice. And, the subject of the hearing at which the action was dismissed was whether the action should be arbitrated, not whether the action should be dismissed with prejudice as a sanction for Kruger’s failure to timely amend. The action should not, therefore, have been dismissed simply because Joel Kruger failed to file an amended complaint attaching the insurance policy or attesting that he did not have a copy.
More to the point, “[ajmong the other factors which should be taken into account in the exercise of discretion [in dismissing an action for failure to file an amended complaint] is Florida’s longstanding policy in favor of adjudication on the merits, and against procedural default.” Id. at 289 (citations omitted). As the Florida Supreme Court in Kozel v. Ostendorf,
The order dismissing this action with prejudice is therefore reversed and this action remanded with instructions to determine what, if any, sanction is appropriate short of dismissal with prejudice. See McMillan,
Reversed and remanded with instructions.
Notes
. Additional grounds for dismissal not at issue here were raised by all parties.
. "Where a court has permitted an amendment, the failure to amend timely is most nearly analogous to a failure to prosecute the action, which is the classic case for a dismissal without prejudice.” Sekot Labs., Inc.,