480 So. 2d 216 | Fla. Dist. Ct. App. | 1985
Howard M. NEU, Appellant,
v.
Judy TURGEL, Appellee.
District Court of Appeal of Florida, Third District.
Frank Wolland, North Miami, for appellant.
No appearance for appellee.
Before BARKDULL, HUBBART and FERGUSON, JJ.
*217 FERGUSON, Judge.
The order dismissing plaintiff's complaint with prejudice for failure to timely amend is reversed on authority of Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla. 1982). Once a court 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. Id. Neither condition was satisfied here.[1]
Reversed and remanded for further proceedings.
NOTES
[1] An amended complaint was filed five days outside the fifteen-day allotted time, but eight months before the order of dismissal with prejudice was entered.
