        Third District Court of Appeal
                                State of Florida

                            Opinion filed March 4, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                  No. 3D14-701
                           Lower Tribunal No. 13-11401
                               ________________


                                Hilda Guevara,
                                     Appellant,

                                         vs.

                             Rodo Guevara, et al.,
                                     Appellees.


     An Appeal from the Circuit Court for Miami-Dade County, Maria E.
Dennis, Judge.

      Jay M. Levy; Ira B. Price, for appellant.

      Pollack & Rosen, P.A., and Mark E. Pollack, for appellees.


Before WELLS, ROTHENBERG, and LAGOA, JJ.

      PER CURIAM.

      The appellant, Hilda Guevara (“Hilda”), appeals from the trial court’s order

dismissing her Petition and Independent Action to set Aside Final Judgment and

Other Relief (the “Petition”) with prejudice. We reverse in part and affirm in part.
      Hilda and appellee, Rodo Guevara (“Rodo”), entered into a marital

settlement agreement (the “MSA”) in 2005.          Among other things, the MSA

contained a provision that the parties would continue to own an apartment building

located in Miami (the “apartments”) as tenants in common but that Rodo would

have the right to purchase Hilda’s interest in the apartments for $250,000 at any

time within the first three years from the date of execution of the MSA. A final

judgment of dissolution, approving and ratifying the MSA, was entered on

February 14, 2006. In 2013, Hilda filed the instant Petition seeking to set aside the

final judgment of dissolution and the MSA on the basis of fraud. Additionally,

concerning the apartments, Hilda alleged that Rodo orchestrated a “sham sale” of

her interest in the apartments, and that she never received the $250,000 in

exchange for her interest in the apartments as provided for in the MSA. To that

end, Hilda alleged claims in the Petition for declaratory relief and cancellation of

quit claim deed, accounting, and slander of title. Rodo and the other defendants

filed a motion to dismiss, and the trial court subsequently entered an order

dismissing the Petition with prejudice.

       We find that the trial court abused its discretion in dismissing the Petition

with prejudice with regard to Hilda’s claim that she did not receive the $250,000 in

exchange for her interest in the apartments as provided for in the MSA. See Fla.

R. Civ. P. 1.190 (a) (stating that “[l]eave of court [to amend a pleading] shall be

given freely when justice so requires”); see also Grove Isle Ass’n, Inc. v. Grove

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Isle Assocs., LLLP, 137 So. 3d 1081, 1095 (Fla. 3d DCA 2014); Kay’s Custom

Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006). As it relates

to all other claims raised in the Petition, however, we affirm the trial court’s order

dismissing the Petition with prejudice. On remand, Hilda shall be permitted to

amend only with regard to her claim that she did not receive the $250,000 to which

she is entitled under the MSA.

      Affirmed in part, reversed in part, and remanded.




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