Current the law requires that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).
This means that a defective complaint will be dismissed without prejudice and with leave to amend the complaint and continue the lawsuit. Further, it is important to remember that a tenant must deposit the undisputed rent into the court registry to file a motion to dismiss (or answer), otherwise a default will issue to landlord without hearing. The mere fct that a 3 day notice may be defective does not waive that legal requirement.
DIANA MARVEZ, Appellant, v. STEVEN CANDELARIA , Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County . November 19, 2014. An Appeal from an order of dismissal in the County Court in and for Miami-Dade County. 22 Fla. L. Weekly Supp. 515b.
(PER CURIAM.) Diana Marvez filed suit to evict Steven Candelaria and Mayelin Candelaria. Subsequently, the Candelarias moved to dismiss the action. The motion to dismiss was granted with prejudice and Marvez appeals.
As a preliminary matter, this Court observes that a dismissal with prejudice is a harsh determination that ends an action without addressing the merits. Dismissal with prejudice is especially harsh where the failure of the complaint is amenable to amendment. Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a].
In the present instance, the motion to dismiss sought dismissal on the grounds that Marvez’s complaint for eviction rested upon a deficient three day notice. The motion further asserted that the wrong lease agreement had been attached to the complaint. This, contend the Candelarias, required dismissal with prejudice.
Effective July 1, 2013, Florida law changed to require that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).
Based upon the foregoing, the Trial Court’s Order of Dismissal REVERSED. The cause is REMANDED to the trial court for entry of an order of dismissal without prejudice and with leave to amend pursuant to section 83.60(1)(a). The Trial Court shall assess appellate fees and costs pursuant to section 83.48, Florida Statues, to the party ultimately prevailing below. (ZABEL, SHAPIRO, LINDSEY, JJ., Concurring).
Da'vid
Is the law in effect now or July 1, 2015? Please provide your source for the determination of the effective date!