DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARLINE AMIACHE,

Appellant,

v.

ISLAND TOWERS, INC., a condominium association, 

and CASEY JOHNSON,

Appellees.

No. 4D22-1692

[August 2, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2020-CA003957-XXXX-MB.

E. Cole FitzGerald, III of E. Cole FitzGerald, III PLLC, Palm Beach, for 

appellant.

Michael A. Rosenberg of Cole, Scott & Kissane, P.A., Plantation, for 

appellees.

DAMOORGIAN, J.

Appellant, Marline Amiache, appeals the final order dismissing her 

action against Island Towers, Inc. (“the Association”) and its president 

Casey Johnson (“the President”) (collectively “Defendants”). Because the 

trial court dismissed the action under the mistaken belief that no further 

judicial action was required, we reverse the dismissal order and remand 

for further proceedings.

Appellant owns a condominium unit at Island Towers and is a member 

of the Association. In 2020, Appellant filed a five-count complaint against 

the Association, the President, and four association board directors. 

The five counts included: (1) negligent breach of fiduciary duty (against the 

President and directors); (2) intentional breach of fiduciary duty (against 

the President and directors); (3) intentional infliction of emotional distress 

(against the President); (4) failure to comply with Florida law (against the 

Association); and (5) declaratory and injunctive relief (against the 

Association).
2

The claims against the directors were ultimately dismissed with 

prejudice, and the claims against the Association and the President were 

dismissed without prejudice. The dismissal order included the following 

relevant language:

As to Counts 1, 2, 4, and 5, Plaintiff is required to comply with 

mandatory Chapter 617 derivative pre-suit requirements. 

Plaintiff must provide a demand to the Association and allow 

the 90-days prescribed by Chapter 617 for the Association to 

conduct an investigation and provide its findings. Plaintiff has 

leave to amend Counts 1, 2, 4, and 5 only against the 

Association and [the President], once she has complied with 

all the pre-suit requirements of a derivative lawsuit under 

Chapter 617 of the Florida Statutes. The claims against 

[the President] on these counts must allege sufficient ultimate 

facts to create individual liability on his part.

As to Count 3 [intentional infliction of emotional distress], 

Plaintiff has twenty (20) days from July 27, 2020, to file an 

Amended Complaint against [the President].

Appellant thereafter appealed the portion of the order dismissing her 

claims with prejudice against the directors only. This Court later affirmed 

the order via per curiam opinion. Amiache v. Blick, No. 4D20-1897, 2021 

WL 6141059 (Fla. 4th DCA Dec. 30, 2021). The opinion’s case caption 

lists only the four directors as the appellees. See id.

While the appeal was pending, Appellant filed an amended two-count 

complaint against the President only for breach of fiduciary duty and 

intentional infliction of emotional distress. The President moved to 

dismiss the amended complaint, which the trial court granted. Regarding 

the intentional infliction of emotional distress count, the court provided 

Appellant until January 29, 2021, to file a second amended complaint. 

The order did not contain a warning of the consequences for failing to 

timely file a second amended complaint regarding that count. Regarding 

the breach of fiduciary duty count, the court struck the count and gave 

Appellant “leave to amend Count I for Breach of Fiduciary Duty Against 

[the President], once she has complied with all the pre-suit requirements 

of a derivative lawsuit under Chapter 617 of the Florida Statutes.” Aside 

from stating Appellant could amend the complaint after complying with 

the pre-suit requirements, the order did not set a deadline as to when the 

complaint had to be amended. It is undisputed that Appellant never filed 

a second amended complaint.
3

On November 22, 2021, after no record activity occurred in the case for 

a period of over ten months, the trial court issued a “Notice of Lack of 

Prosecution, Court’s Motion to Dismiss, and Order Setting Hearing.” The 

notice provided that if no record activity occurred within sixty days 

following service of the notice, the action would be dismissed. In the event 

there was a filing within the sixty days, the notice ordered all parties to 

attend a mandatory status conference on February 11, 2022. Within the 

sixty-day timeframe, Appellant filed a motion to depose.

The matter proceeded to a mandatory status conference as scheduled. 

Following the conference, the trial court entered an order titled “Order of 

Dismissal from Lack of Prosecution Hearing, Order Directing the Clerk to 

Close the File and Order Directing Clerk to Place in a Reopen Status.” 

In relevant part, the order states: “the Court finds the Plaintiff’s Complaint 

has been previously dismissed by separate order. The Court takes judicial 

notice the Fourth District Court of Appeal issued a mandate on January 

21, 2022, affirming the Court’s prior ruling. It appears no further judicial 

action is required.” The order does not specifically reference rule 1.420(e), 

make any findings regarding whether the motion to depose constitutes

record activity, or include any findings regarding Appellant’s failure to file 

a second amended complaint.

We reverse the dismissal order as it appears the trial court dismissed 

the action solely based on the mistaken belief that this Court’s mandate 

in case 4D20-1897 applied to Defendants and that therefore no further 

judicial action was required. This was error as our mandate only applied 

to the claims against the four directors. In light of this mistaken belief, 

and the fact that the trial court did not otherwise make any findings 

regarding whether the motion to depose constituted record activity under 

rule 1.420(e), we are compelled to reverse.

Defendants nonetheless argue this Court should affirm because 

Appellant failed to “file a second amended complaint in contravention of 

the Court’s order dated November 23, 2020,” and cite to cases discussing 

a court’s discretion to dismiss complaints for non-compliance with court 

orders. To the extent Defendants seemingly suggest the trial court 

dismissed the action as a sanction for failing to file a second amended 

complaint, we reject this argument as the record does not indicate the 

court dismissed the action as a sanction. Moreover, the trial court could 

not dismiss the action as a sanction for failure to file a second amended 

complaint without first providing Appellant with notice of its intent to 

consider imposing sanctions for this reason, which the court in this case 

did not do. See NYC Constr. Grp., Inc. v. Jerome, 333 So. 3d 790, 793 (Fla. 
4

4th DCA 2022); List v. St. Petersburg Hotel Ass’n, 466 So. 2d 1258, 1260 

(Fla. 2d DCA 1985) (“[O]nce a court has dismissed a complaint for failure 

to state a cause of action, but has granted the party leave to amend, the 

court may subsequently dismiss an unamended complaint with prejudice 

for its continuing failure to state a cause of action upon proper notice to the 

plaintiff.” (emphasis added)).

Reversed and remanded.

WARNER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.