## Facts

- Fritz L. Frugoli sued Winn-Dixie Stores, Inc. and Jerry Kelly in Florida circuit court.
- Frugoli filed a first amended complaint asserting four counts against Winn-Dixie.
- The pleading was drafted so that each successive count incorporated not only the introductory allegations but also all prior counts’ allegations.
- The trial court dismissed the entire first amended complaint with prejudice, including counts II and III against Winn-Dixie, without further leave to amend.
- On appeal, Frugoli challenged the dismissal with prejudice of counts II and III, arguing he should have been permitted to amend in light of Florida’s liberal amendment policy.

## Issues

1. Whether the trial court erred by dismissing counts II and III against Winn-Dixie with prejudice when those counts stated a cause of action but were pleaded defectively.
2. Whether Florida’s liberal amendment policy required the trial court to allow repleading to cure improper incorporation and insufficient ultimate facts.

## Decision

- The appellate court affirmed the dismissal order to the extent it dismissed the first amended complaint.
- The appellate court reversed the dismissal *with prejudice* as to counts II and III against Winn-Dixie.
- The case was remanded with directions to permit Frugoli to file a second amended complaint as to counts II and III within twenty days after issuance of the mandate; if he failed to do so, the dismissal with prejudice would stand.

## Legal Principles

- A pleading that causes each count to incorporate all prior counts (“shotgun” incorporation) is improper because it obscures the factual and legal basis for each claim and hinders a meaningful response.
- A complaint may be dismissed for failure to plead sufficient ultimate facts, even if it contains bare allegations suggesting a viable claim.
- When a count states a cognizable cause of action but suffers from curable pleading defects, dismissal with prejudice is improper; the plaintiff should be given an opportunity to amend under Florida Rule of Civil Procedure 1.190.
- A court may condition continued litigation on timely filing of an amended pleading that cures identified defects.

## Conclusion

The court held that, although the first amended complaint was deficiently drafted, counts II and III were not so substantively defective as to warrant termination with prejudice; consistent with Florida’s liberal amendment policy, Frugoli had to be allowed a limited opportunity to replead those counts in proper form.


Frugoli v. Winn-Dixie Stores, Inc., 464 So. 2d 1292 (Fla. Dist. Ct. App. 1st Dist. 1985)