Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEFFREY JENSEN, ) ) Appellant, ) ) v. ) Case No. 2D19-1016 ) PINELLAS COUNTY, ) ) Appellee. ) ) Opinion filed April 3, 2020. Appeal from the Circuit Court for Pinellas County; Patricia Ann Muscarella, Judge. Jeffrey Jensen, pro se. Nancy S. Meyer, Senior Assistant County Attorney, Pinellas County Attorney's Office, Clearwater, for Appellee. CASANUEVA, Judge. Jeffrey Jensen appeals an order dismissing his fifth amended complaint with prejudice. The complaint seeks injunctive and declaratory relief, challenging the validity of a Pinellas County ordinance regulating the sale of firearms. A prior reversal from this court gave Mr. Jensen the opportunity to amend his third amended complaint. Jensen v. Pinellas County, 198 So. 3d 754, 758 (Fla. 2d DCA 2016) (Jensen I). After two more amendments to the complaint, the trial court found it lacking and granted dismissal with prejudice. Because the stated basis for dismissal is not valid and because the record does not support a dismissal with prejudice, we reverse and remand for further proceedings. I. Procedural History In Jensen I, this court reversed a final declaratory judgment upholding the challenged ordinance1 because the final judgment "attempt[ed] to resolve legal issues beyond those that properly could be resolved" on the pleadings and record then before the trial court. Id. Without addressing the merits of Mr. Jensen's claims, we reversed and remanded the final declaratory judgment but stated that "Mr. Jensen must narrow and sharpen his theories before the circuit court is obligated to provide any declaratory relief."2 Id. 1See Jensen I for a more detailed discussion of the action filed by Mr. Jensen, the challenged ordinance, and other relevant laws at play. 198 So. 3d at 755- 57. 2This court identified several failings of Mr. Jensen's complaint (then the third amended): In his complaint, Mr. Jensen has not alleged specific acts that he believes he should be entitled to perform. It is frankly difficult to determine whether he is arguing, under his several constitutional theories, that the ordinance is facially unconstitutional or merely unconstitutional as applied. His broad brush approach to the case makes a careful legal ruling difficult, if not impossible. Mr. Jensen does not, for example, allege that he wants to sell rifles in his front yard or that he wants to buy shotguns at a gun show where people must purchase tickets to attend. Id. at 757. -2- Mr. Jensen responded by filing his fourth amended complaint, which contained additional factual allegations, additional specificity as to counts I through VIII, and an additional count for declaratory relief. Pinellas County filed another motion to dismiss raising various arguments, including Mr. Jensen's failure to serve the Florida Attorney General as required by statute. After multiple memoranda of law filed by both parties, the trial court dismissed the fourth amended complaint without prejudice based on Mr. Jensen's failure to serve the Attorney General. Finding that this basis was dispositive, the court declined to address the other grounds for dismissal raised by Pinellas County. Mr. Jensen then filed a fifth amended complaint addressing the service deficiency that was the basis for the prior dismissal. Pinellas County filed another motion to dismiss, this time with prejudice, for the most part renewing the arguments made in its motion to dismiss the fourth amended complaint but excluding the service deficiency argument. Based on its review of the court file, the motion, and applicable law, and without a hearing, the trial court granted the motion to dismiss with prejudice.3 II. Analysis The standard of review of an order granting a motion to dismiss is de novo. Swope Rodante, P.A. v. Harmon, 85 So. 3d 508, 509 (Fla. 2d DCA 2012). In ruling on a motion to dismiss, a trial court's examination is limited to the four corners of the complaint, the allegations in the complaint must be taken as true, and all inferences must be resolved in favor of the plaintiff. Id. "It is well settled that a complaint should 3We reject without discussion Mr. Jensen's argument that the trial court denied him procedural due process by ruling on the motion to dismiss his fifth amended complaint without providing him sufficient notice and opportunity to be heard. -3- not be dismissed with prejudice if it supports a cause of action on any ground." Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822, 824 (Fla. 2d DCA 1997); see also Wilson v. News-Press Publ'g Co., 738 So. 2d 1000, 1001 (Fla. 2d DCA 1999) ("[A] court should not dismiss a complaint with prejudice if it is actionable on any ground."). In this case, the order dismissing the fifth amended complaint states: "Plaintiff still presents this court with a vague and abstract request for declaratory and injunctive relief. Plaintiff has not established a legal or factual basis for the court to hold the challenged ordinance unconstitutional, or otherwise invalid." The order then goes on to address plaintiff's "questionable effort" in responding to certain court orders, including the court's need to make multiple requests for memoranda of law in response to the motion to dismiss the fourth amended complaint. The order concludes that Mr. Jensen failed to sufficiently state a cause of action and dismisses the complaint with prejudice. First, we note that the court's findings regarding Mr. Jensen's responsiveness cannot serve as a basis for dismissal in the absence of consideration of Kozel factors, nor does the record show such aggravating factors as would justify the ultimate sanction of dismissal based on the plaintiff's conduct. See Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993); Deutsche Bank Nat'l Tr. Co. v. Waldorf, 92 So. 3d 857, 858 (Fla. 2d DCA 2012). Next, we consider the court's statement that the complaint remains "vague and abstract." [W]here a complaint contains sufficient allegations to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant can intelligently answer the same, it is error to dismiss the action on the ground that -4- more specific allegations are required. . . . A motion to dismiss a complaint for failure to state a cause of action does not reach defects of vague and ambiguous pleading. Meadows Cmty. Ass'n v. Russell-Tutty, 928 So. 2d 1276, 1278 (Fla. 2d DCA 2006) (alterations in original) (quoting Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563, 565 (Fla. 1971)); see also Student Loan Mktg. Ass'n v. Morris, 662 So. 2d 990, 992 (Fla. 2d DCA 1995) ("To the extent it can be argued that the allegations contained in the appellant's amended complaint are vague and ambiguous, it must be remembered that a motion to dismiss a complaint for failure to state a cause of action does not reach the defects of vague and ambiguous pleadings."). Thus, for example, combining two theories of relief into one count is not a sufficient basis for dismissing a complaint. Meadows Cmty. Ass'n, 928 So. 2d at 1278. While not a model of succinct clarity, we cannot say that Mr. Jensen's fifth amended complaint is insufficient "to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant can intelligently answer the same." Id. To state a cause of action for declaratory relief challenging the validity of a statute or ordinance, the test is not whether the plaintiff will ultimately be successful: "[T]o activate jurisdiction the party seeking a declaration must show that he is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed," and "the plaintiff must show a bona fide, actual, present, and practical need for the declaration." See Wilson v. County of Orange, 881 So. 2d 625, 631 (Fla. 5th DCA 2004) (quoting X Corp. v. Y Person, 622 So. 2d 1098, 1101 (Fla. 2d DCA 1993)). -5- The fifth amended complaint contains claims for declaratory relief challenging a county ordinance and, as compared to the third amended complaint, identifies specific activities Mr. Jensen believes to be permitted by statutory and constitutional provisions but prohibited by the county ordinance. In short, Mr. Jensen added legal and factual specificity to address the concerns noted in Jensen I, and the order dismissing the fifth amended complaint with prejudice does not discuss why the complaint as amended fails to state a cause of action or why it is "vague and abstract."4 "A circuit court is not always required to state its reasoning with particularity, but the appellate review process is more effective when it does." News-Press Publ'g Co., 738 So. 2d at 1001. We conclude that the basis stated in the order of dismissal is insufficient to support dismissal with prejudice. We are aware that this was Mr. Jensen's fifth amended complaint, and we are aware of the case law stating that, "with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion." Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992). However, under the specific facts of this case, we find that such case law is not determinative. Mr. Jensen made significant amendments to his complaint in response to this court's opinion in Jensen I. Cf. Turkali v. City of Safety Harbor, 93 So. 3d 493, 495 (Fla. 2d DCA 2012) ("Since this was his third amended complaint and was essentially 4We note that defects of vagueness are appropriately addressed with a motion for more definite statement or motion to strike, not with a motion to dismiss. See Fla. R. Civ. P. 1.140; Fontainebleau Hotel Corp., 246 So. 2d at 566; Meadows Cmty. Ass'n, 928 So. 2d at 1278; Calhoun v. Epstein, 121 So. 2d 828, 830 (Fla. 2d DCA 1960) ("A motion for more definite statement is appropriate for dissipation of vagueness and ambiguity and a motion to strike is proper for purging immaterial, impertinent, etc., matter."). -6- the same as his second amended complaint, the trial court was within its discretion to dismiss with prejudice."). Those amendments were first presented to the trial court in Mr. Jensen's fourth amended complaint. The trial court dismissed that pleading based on his failure to serve the Attorney General and declined to address any other alleged deficiencies. Mr. Jensen corrected the service problem with the filing of his fifth amended complaint, which the trial court dismissed with prejudice for failing to state a cause of action because it was "vague and abstract." If there were additional bases for dismissal of the complaint, the trial court did not articulate such bases. III. Conclusion This is not a case in which the plaintiff refused to correct an error identified by the trial court or proved unable to overcome an obstacle in pleading a cause of action. Under the facts of this case, it was error to dismiss the complaint with prejudice. Accordingly, we reverse the order dismissing Mr. Jensen's fifth amended complaint and remand for further proceedings consistent with this opinion. Reversed and remanded. VILLANTI and LaROSE, JJ., Concur. -7-