Fusilier v. Markov

LEVY, Judge. Connie J. Fusilier (hereinafter “Fusilier”), the defendant below, appeals a trial court order denying a motion to vacate default and default final judgment. For the following reasons, we reverse. On March 10, 1995, the plaintiff, Gregory P. Markov (hereinafter “Markov”) filed his complaint naming Fusilier and two other individuals as co-defendants. Fusilier and one of the codefendants filed their respective answers, but each failed to attach the required certificate of service. The remaining co-defendant, however, filed his answer with the required certificate of service. On June 16, 1995, the plaintiff served upon the defendants his first amended complaint. However, the plaintiff failed to obtain leave of the court or consent of the parties before he served his amended complaint. Fusilier maintains that since Markov did not obtain leave of the court or consent of the parties before he amended his complaint, his first amended complaint is a nullity to which no responsive pleading is due. We agree. A party may amend a pleading once, as a matter of course, at any time before a responsive pleading is served. Otherwise, a party may amend a pleading only by leave of court or by the consent of the parties. See Fla. R. Civ. P. 1.190(a). In the instant ease, in addition to the answers filed by Fusilier and one other defendant, one of Fusilier’s co-defendants properly served his answer with an accompanying certificate of service on the plaintiff on June 5, 1995. The plaintiff served his first amended complaint on the defendants on June 16, 1995. Accordingly, we reverse and remand this case to the trial court with instructions to dismiss the amended complaint and vacate the default final judgment. Warner-Lambert Co. v. Patrick, 428 So.2d 718 (Fla. 4th DCA 1983). The opinion of this court should not be construed in any way to suggest that the plaintiff should not be allowed to amend his complaint once he has sought leave from the court or consent from the parties, in accordance with Florida Rule of Civil Procedure 1.190(a). Reversed and remanded.