NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


ACQUISITION TRUST COMPANY, LLC,               )
                                              )
              Appellant,                      )
                                              )
v.                                            )      Case No. 2D16-3325
                                              )
LAUREL PINEBROOK, LLC, and                    )
REAL SUB, LLC, and PUBLIX SUPER               )
MARKETS, INC.,                                )
                                              )
              Appellees.                      )
                                              )

Opinion filed July 7, 2017.

Appeal from the Circuit Court for Sarasota
County; Rochelle Curley, Judge.

Alex P. Rosenthal and Amanda Jassem
Jones of Rosenthal Law Group, Weston,
for Appellant.

Hunter G. Norton and Steven J. Chase of
Shumaker, Loop & Kendrick, LLP,
Sarasota, for Appellee Laurel Pinebrook,
LLC.

Kristin Hatcher-Bolin and Mark N. Miller of
GrayRobinson, P.A., Lakeland, for
Appellees Real Sub, LLC and Publix Super
Markets, Inc.
LUCAS, Judge.

              This case concerns a dispute over a purchase and sale agreement of

commercial property, which was subject to a prior, recorded right of first refusal.

Challenging the manner in which that right of first refusal was exercised, the frustrated

prospective purchaser of the property, Acquisition Trust Company, LLC ("Acquisition

Trust"), filed a complaint in the circuit court of Sarasota County alleging rescission,

specific performance, and breach of contract. The circuit court dismissed Acquisition

Trust's complaint with prejudice.1 Appellees concede that the circuit court's dismissals

with prejudice was improper since Acquisition Trust had never been afforded an

opportunity to amend its complaint. We agree. See Strader v. Carpenters Crest

Owners Ass'n, Inc., 

, 622 (Fla. 2d DCA 2007) ("Generally, a trial court

must allow a litigant the opportunity to amend a complaint before dismissing its suit with

prejudice unless it is clear that the pleading cannot be amended so as to state a cause

of action." (quoting Albrecht v. Bd. of Trs. of Internal Improvement Tr. Fund, 

, 556 (Fla. 2d DCA 1986)); Kapley v. Borchers, 

, 1218 (Fla. 2d DCA

1998) ("A dismissal with prejudice should not be ordered without giving the party

offering the pleading an opportunity to amend unless it appears that the privilege to

amend has been abused or it is clear that the pleading cannot be amended to state a




              1
                  Appellees argued in their motions to dismiss that Acquisition Trust had no
standing to dispute how their transaction for the sale of the subject property was
consummated once Publix Supermarkets, Inc., gave notice that it would exercise its
right of first refusal over the property. At the conclusion of the hearing on the motion to
dismiss, the circuit court took the matter under advisement and then issued the orders
now on appeal, orders which were silent as to any basis or rationale for the dismissals
of Acquisition Trust's complaint.


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cause of action."). Accordingly, we reverse the orders of the circuit court and remand

this case for further proceedings consistent with this opinion.

              Our reversal necessarily affords Acquisition Trust the opportunity to file an

amended complaint, a pleading that, it appears from the record and the representations

made to us during oral argument, will likely be filed and will likely differ in some respects

from the dismissed complaint. And obviously, we have no way of knowing in advance

the manner in which Appellees will choose to respond to such an amended pleading

when or if it is served. The parties urge us to nevertheless render an opinion on the

merits of the substantive legal controversy that was argued in the prior motion to

dismiss the original complaint. In this case, though, we must respectfully decline their

invitation. Cf. State v. Barati, 

, 813 (Fla. 1st DCA 2014) ("Under the

Florida Constitution, only the Florida Supreme Court has the jurisdiction to issue

advisory opinions." (first citing art. V, § 3(b)(10), Fla. Const.; and then citing Fla. House

of Representatives v. League of Women Voters, 

, 207 (Fla. 2013)). We

express no opinion, then, on the substantive issues raised below and in this appeal but

must leave that to the parties and the circuit court to develop more fully following

remand.

              Reversed and remanded.


MORRIS, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.




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