Thursday, July 16, 2009

Trial Court Must Give Notice Before Dismissing a Complaint Sua Sponte

In Manzano v. Nicoletti (3D08-2719), the Third District reversed a dismissal entered by the trial court on a confession of error by the defendant/appellee.

"We accept the defendants’ concession that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond. Surat v. Nu-Med Pembroke, Inc., 632 So. 2d 1136, 1136-38 (Fla. 4th DCA 1994). The defendants acknowledge that the procedure outlined in Surat was not followed here, and accordingly we reverse the dismissal order. This ruling is without prejudice to the defendants to file a motion to dismiss, or the court to raise the issue on its own motion. The plaintiffs must be given a reasonable opportunity to respond in writing, and if at all possible, should be afforded the right to be heard at the hearing telephonically."


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