RICKY MCALPIN AND ANNA 

MCALPIN,

Appellants,

v.

LOUIS ROBERTS, III, IN HIS 

OFFICIAL CAPACITY AS 

SHERIFF OF JACKSON 

COUNTY, FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-5760

_____________________________/

Opinion filed July 20, 2016.

An appeal from the Circuit Court for Jackson County.

William L. Wright, Judge.

William Kemper Jennings, DeFuniak Springs, for Appellants.

Jason Vail of Jolly, Peterson & Truckenbrod, P.A, Tallahassee, for Appellee.

PER CURIAM.

The Appellants operate a tube and canoe rental business on the banks of 

Spring Creek in Marianna, Florida. They sued the Sheriff of Jackson County, 

complaining that he and his deputies were interfering with the Appellants’ business 
2

by unlawfully attempting to enforce a county ordinance limiting glass and Styrofoam 

containers in Spring Creek. Among other things, the Appellants alleged that the 

Sheriff’s deputies had unlawfully entered the Appellants’ property and interfered 

with “customers in their use of [Appellants’] vessels and other services.” 

In response, the Sheriff moved to dismiss claiming (1) the Appellants had 

failed to comply with the pre-suit requirements of section 768.28, Florida Statutes, 

(2) the complaint failed to allege sufficient facts to determine whether the action was 

brought within the applicable limitations period, (3) the Appellants lacked standing 

to seek declaratory or injunctive relief, and (4) the Appellants had failed to include 

an indispensable party, Jackson County. After a brief hearing on the motion, the 

trial court ruled for the Sheriff “on all counts, including the standing issue.” The 

court denied the Appellants’ request for leave to amend the complaint and entered a 

short order “find[ing] for the [Sheriff] on all arguments raised” and dismissing with 

prejudice. 

On appeal, the Appellants argue that the trial court abused its discretion by 

denying leave to amend. We agree. This Court has previously said that dismissal 

with prejudice “is a severe sanction which should be granted only when the pleader 

has failed to state a cause of action, and it conclusively appears that there is no 

possible way to amend the complaint to state a cause of action.” Obenschain v. 

Williams, 750 So. 2d 771, 772-73 (Fla. 1st DCA 2000). The opportunity to amend 
3

should be liberally granted and should not be denied unless the privilege has been 

abused. Id. at 773. 

The Sheriff does not defend the trial court’s decision to dismiss with prejudice 

on all grounds, arguing instead that the result was justified by the Appellants’ lack 

of standing.1 However, even if the complaint alleged insufficient facts to establish 

standing, the court should have granted the opportunity to amend. See Webb v. 

Town Council of Town of Hilliard, 766 So. 2d 1241, 1244-45 (Fla. 1st DCA 2000)

(finding that trial court abused its discretion in dismissing the complaint with 

prejudice and stating that court should have “dismissed the complaint with leave to 

amend to correct the deficiencies as to standing”); All Risk Corp. of Fla. v. State, 

Dep’t of Labor & Emp’t Sec., Div. of Workers’ Comp., 413 So. 2d 1200, 1202 (Fla. 

1st DCA 1982) (finding that while hearing officer correctly determined party lacked 

 

1 The Sheriff suggests that the trial court’s dismissal with prejudice was based only 

on standing, explaining that: “Although the trial court did not elaborate on its 

reasons, the only basis for dismissal with prejudice raised in the motion to dismiss 

was for lack of standing. One must assume lack of standing was what the trial court 

had in mind.” Br. of Appellee at 9. We find it hard to make that assumption based 

on the order itself, which read (in its entirety): 

The defendant’s motion to dismiss came before the Court for hearing 

on October 29, 2015. The Court having had the benefit of the arguments 

in the motion and the parties’ oral argument at hearing finds for the 

defendant on all arguments raised. Therefore, the Court concludes that 

the complaint must be dismissed with prejudice. Consequently, the 

motion to dismiss is granted and judgment is rendered for the 

defendant.
4

standing based on the allegations, the denial of leave to amend was an abuse of 

discretion); Reibel v. Rolling Green Condo. A, Inc., 311 So. 2d 156, 158 (Fla. 3d 

DCA 1975) (reversing order denying defendants’ motion to dismiss for lack of 

standing and remanding with directions for entry of order dismissing the complaint 

with leave to amend). In this case, it is not clear that any amendment would be futile. 

Notably, the Sheriff’s counsel initially seemed to share that view below, concluding 

his argument at the motion hearing by saying “I do think that if you do that [dismiss] 

that you have to offer the [Appellants] an opportunity to amend, replead.” The trial 

court nonetheless denied leave, which was an abuse of discretion.

Accordingly, we reverse the order of dismissal and direct the trial court to 

allow the Appellants an opportunity to amend the complaint.

REVERSED and REMANDED WITH DIRECTIONS.

ROWE, OSTERHAUS, and WINSOR, JJ., CONCUR.