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In this pro se prisoner case, the Fourth District reversed the trial court for the “drastic and unwarranted measure” of dismissing an amended complaint with prejudice because the plaintiff did not first obtain leave to file it. The appellate court remanded for the trial court to consider the necessary factors governing amendments, including “whether such amendment would prejudice the opposing parties, whether the privilege of amendment has been abused, and whether amendment would be futile.”
This slip and fall Plaintiff struggled with her Complaint, amending it three times after the initial filing. Nevertheless, through all of the amendments, the substantive factual allegations remained unchanged. The Third Amended Complaint was filed, however, after the statute of limitations ran on the underlying cause of action and the trial court dismissed the case with prejudice. On appeal, the Third DCA overturned the dismissal finding that the amended complaint related back to the original pleading, which was timely filed, pursuant to Rule 1.190, Fla. R. Civ. Pro. The Court reiterated that a pleading relates back if “the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.” Citing Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989).
Appeal of Trial Court’s order granting Motion for Summary Judgment was not timely as (1) counterclaims were not adjudicated in Summary Judgment Order and (2) counterclaims were not separate and distinct from the claims disposed of on Summary Judgment. Citing Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008).
It has been a slow few weeks for Florida Civil Procedure decisions, so I will pass along this blog post from the blog, Law21.ca on one possible future for the legal profession:
One of the oldest pieces of marketing advice in the legal profession is: “Don’t compete on price.” Wiser heads than mine constantly warn lawyers not to cut their prices to match what other sellers are providing, that engaging in a price war for legal services is as potentially ruinous as getting involved in a land war in Asia. . .yet the day will soon come where we have to lower our prices just to stay in the marketplace conversation. If you can upgrade the type and quality of your services to premium or luxury levels and therefore maintain or even increase your prices, good for you. But there’s only so much room at the top of the mountain and not everyone can stand there; and in any event, raising the quality of what you offer often requires increasing what you spend to offer it, getting you no farther ahead.
But you don’t need to compete on price if you can go one better: compete on cost. . .