A. HAGEN, APPELLANT,
v.
FLORIDA DRUG, INC., D/B/A FLORIDA WHOLESALE DRUG, INC., AND REMALA DRUG CORPORATION, D/B/A WILLIAMS REXALL PHARMACY, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in dismissing counts one and two of the complaint, but correctly dismissed count three.
Plaintiff appealed the dismissal of his third amended complaint. The complaint included counts for breach of lease, enforcement of a landlord's lien, …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Landlord'S Lien cases and more on FLexlaw
HURLEY, Judge.
Plaintiff/appellant brings this appeal from the dismissal with prejudice of his third amended complaint. We affirm in part and reverse in part.
Count one was aimed at the defendant Remala Drug Corporation and alleged a breach of a lease agreement. Since Remala neither moved to dismiss nor filed a responsive pleading, the court erred in dismissing count one.
Count two was directed against defendant/appellee Florida Drug, Inc. Therein, plaintiff alleged the existence of a statu tory landlord’s lien and prayed for its enforcement against the proceeds of a subsequent lien which had been perfected by Florida Drug, Inc. Employing the usual criteria for evaluating a pleading on a motion to dismiss, see Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So. 2d 1171 (Fla. 3rd DCA 1981), we conclude that count two adequately states a cause of action. Those matters now urged upon us by appellee to justify the dismissal constitute affirmative defenses which should be pled and considered at a later stage in the proceedings.
Count three, on the other hand, seeks to establish an equitable lien against certain proceeds obtained by appellee. Since there are no allegations of fraud, misrepresentation or other affirmative deception, the trial court was correct in dismissing this count. See Rinker Materials Corp. v. Palmer First National Bank and Trust Co., 361 So. 2d 156 (Fla.1978); Armetta v. Clevetrust Realty Investors, 384 So. 2d 55 (Fla. 4th DCA 1980).
Accordingly, the dismissal of counts one and two is reversed; the dismissal of count three is affirmed.
LETTS, C. J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gould v. Nat'l Bank OF Fla., 421 So. 2d 798 (Fla. 3d DCA 1982)…ough in the absence of fraud there must be proof of misrepresentation or other affirmative deception. See Rinker Materials Corp. v. The Palmer First National Bank and Trust Company of Sarasota, 361 So. 2d 156 (Fla.1978); Hagen v. Florida Drug, Inc., 402 So. 2d 57 (Fla. 4th DCA 1981); Armetta v. Clevetrust Realty Investors, 384 So. 2d 55 (Fla. 4th DCA 1980). Obviously then the jury could have found the Bank estopped to collect on the promissory note because of a misrepresentation or other affirmative deceptio…
-
Marcline v. Fla. Ins. Guar. Ass'n, 61 So. 3d 487 (Fla. 4th DCA 2011)…or the parties and counsel to be heard.’ ”) (citation omitted). Dismissal should be predicated on a properly filed and noticed motion to dismiss or other dispositive motion to protect the parties’ rights to due process. See Hagen v. Fla. Drug, Inc., 402 So. 2d 57, 57 (Fla. 4th DCA 1981). While appellee had filed a motion for summary judgment, the motion was insufficient under Rule 1.510(c) and (e), as the motion was filed less than twenty days prior to the hearing and the documentary evidence submitted in su…
-
Joseph v. Norman Laporte Realty, Inc., 483 So. 2d 557 (Fla. 3d DCA 1986)…order of dismissal and that the order was entered without notice to the parties affected, thereby depriving them of an opportunity to be heard. Jeffrey’s, Inc. v. Restaurants, Inc., 156 So. 2d 518 (Fla. 3d DCA 1963). See Hagen v. Florida Drug, Inc., 402 So. 2d 57 (Fla. 4th DCA 1981). Cf. Crowder v. Oroweat Foods Co., 447 So. 2d 1038, 1040 (Fla. 2d DCA 1984).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rinker Materials Corp. v. The Palmer First Nat'l Bank & Tr. Co. OF Sarasota, 361 So. 2d 156 (Fla. 1978)
- Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So. 2d 1171 (Fla. 3d DCA 1981)
- Vincenzo Armetta v. Clevetrust Realty Invs., 384 So. 2d 55 (Fla. 4th DCA 1980)