               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



LYNDA ANN ALBRITTON, as personal             )
representative of the Estate of Bobby J.     )
Albritton, deceased,                         )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D17-35
                                             )
JOSEPH BARNESS,                              )
                                             )
             Appellee.                       )
                                             )

Opinion filed September 14, 2018.

Appeal from the Circuit Court for Pasco
County; Kemba Lewis, Judge.

Roland D. Waller and Jaleh Piran-Vesseh
of Waller & Mitchell, New Port Richey, for
Appellant.

Amy E. Stoll and Steve C. Pratico of
Barnett, Bolt, Kirkwood, Long & Koche,
P.A., Tampa, for Appellee.


KELLY, Judge.

             Lynda Ann Albritton, as personal representative of the Estate of Bobby J.

Albritton, appeals from an order dismissing the Estate's action against the appellee,

Joseph Barness. We reverse because the trial court erred when it did not allow Bobby

Albritton to amend his complaint.
              Bobby Albritton, whose Estate was substituted after he died during the

pendency of this appeal, brought an action against Barness to foreclose a mortgage.

Barness moved to dismiss the complaint and dissolve the lis pendens. The trial court

granted the motion without prejudice and dissolved the lis pendens. Albritton then filed

an amended complaint, again including a count for foreclosure, and a new lis pendens.

However, he also filed a motion for leave to amend, which of course was unnecessary

because Barness had not filed a responsive pleading. See Fla. R. Civ. P. 1.190(a);

Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005). Barness, who

characterized the amended complaint as "unauthorized" because it was filed without

leave of court, moved to dissolve the lis pendens and to sanction Albritton for filing it.

The trial court granted the motion to dissolve the lis pendens and in the same order

denied Albritton's motion for leave to amend the complaint. Albritton sought certiorari

review of that order in this court; however, we dismissed the petition for lack of

jurisdiction without prejudice for Albritton to appeal if and when the trial court entered a

final order disposing of the case. Notably, Albritton's petition cited rule 1.190(a) and

Boca Burger in support of his argument that the trial court's order should be quashed

because he had the right to amend without leave of court at the time he filed the

amended complaint.

              After unsuccessfully trying to invoke this court's certiorari jurisdiction,

Albritton found himself in a kind of no man's land in that neither the trial court's order

granting the motion to dismiss the original complaint nor the order denying leave to

amend his dismissed complaint were reviewable in this court, yet those orders

precluded him from proceeding in the trial court. Faced with this situation, Albritton




                                             -2-
asked the trial court to either dismiss the original complaint with prejudice so he could

appeal from the dismissal or, alternatively, to reconsider and allow him to amend his

complaint "for the reason set forth in the attached Petition for Certiorari." As explained

above, in his petition Albritton cited Boca Burger and rule 1.190(a) in support of his

argument that he had an absolute right to amend his complaint. The trial court did not

relent but instead dismissed Albritton's complaint with prejudice.

              In this appeal, Albritton again argues that the trial court erred when it

refused to allow him to amend his complaint. One could argue that Albritton invited this

error by seeking leave to amend unnecessarily. On the other hand, Barness, in a

situation reminiscent of Boca Burger seized on Albritton's mistake when, in seeking to

dissolve the second lis pendens, characterized the amended complaint as

"unauthorized" because it was filed without leave of court. This more than Albritton's

unnecessary request for leave to amend set the stage for the trial court's error. Even on

appeal Barness is still trying to thwart Albritton's right to amend by making the same

arguments the supreme court unequivocally rejected in Boca Burger. While Albritton

perhaps could have been more aggressive when he brought this to the trial court's

attention, he did in fact bring it to the trial court's attention and given how things

unfolded below, we conclude he did so in a timely manner.

              Accordingly, we reverse the order dismissing Albritton's complaint and we

remand for further proceedings. In addition, on this court's own motion, counsel for

Barness is directed to show cause, within thirty days from the issuance of this opinion,

why the Estate's appellate attorney's fees and costs should not be assessed against

them as a sanction pursuant to Florida Rule of Appellate Procedure 9.410 and section




                                             -3-
57.105, Florida Statutes (2017). See Boca Burger, 912 So. 2d at 563 (holding that "an

appellate court may, in appropriate circumstances, impose sanctions on an appellee or

its lawyer for its frivolous defense of a patently erroneous trial court order" and

explaining that counsel's ethical obligation to the court may sometimes "require

appellate counsel to concede error where, although trial counsel obtained a favorable

result, either the facts were not as represented to the trial court or the law is clearly

contrary to the appellee's position and no good-faith basis exists to argue that it should

be changed"). We retain jurisdiction for the limited purpose of considering sanctions

following our review of Barness's response to this opinion's order to show cause.




BADALAMENTI, J., Concurs.
SILBERMAN, J., Concurs in result only with opinion.




                                             -4-
SILBERMAN, Judge, Concurring in result only.

              I agree with the majority's decision to reverse the order dismissing

Albritton's complaint because he was legally entitled to amend the complaint. I do not

join in the decision to order counsel for Barness to show cause as to why attorney's fees

should not be assessed against Barness as a sanction. Instead, I would grant the

Estate's motion for attorney's fees as prevailing party pursuant to the terms of the

mortgage, conditioned on the Estate's ultimately prevailing in the underlying litigation.




                                           -5-
