MARVIN SINGER, APPELLANT,
v.
FLORIDA PAVING COMPANY, INC., APPELLEE
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Singer appeals the trial court's dismissal of his complaint for damages against Florida Paving Company for defective driveway work. The court reverses, holding that Singer's independent claim states a valid cause of action and is not barred by res judicata principles, even though a prior counterclaim on the same matter was dismissed.
The court reversed the dismissal. Singer's complaint states a valid cause of action within circuit court jurisdiction, and res judicata does not bar the filing of an independent action based on a claim that was dismissed as a compulsory counterclaim, particularly while the original lawsuit remains pending.
[1] A trial court's ruling on a motion to dismiss is confined to the allegations within the four corners of the complaint, and the court must accept these allegations as true…
[2] A complaint should not be stricken as a sham unless it is inherently false.
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Join FLexlaw to unlock all legal intelligence“a trial court's ruling on a motion to dismiss is confined to the allegations within the four corners of the complaint. The trial court is required to accept the allegations as true and may not speculate as to the ultimate facts to be proved during trial.”
Establishes the standard of review for motions to dismiss—courts must accept complaint allegations as true and cannot second-guess jurisdictional allegations.
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Join FLexlaw to unlock all legal intelligenceFlorida Paving Company contracted to pave and drain Singer's driveway but performed the work improperly. Singer paid only part of the contract amount.…
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BASKIN, Judge.
Finding that Singer’s independent claim for damages states a cause of action within the jurisdiction of the circuit court, and that his claim is not barred by principles of res judicata, we reverse the trial court’s dismissal of Singer’s complaint.
Singer’s action was precipitated by Florida Paving Company’s failure to pave and drain Singer’s driveway properly. When Florida Paving Company completed its work, Singer paid only a portion of the sum due under his contract. As a result, Florida Paving Company brought an action in county court to foreclose its mechanic’s lien on the property and to recover damages for breach of contract. Singer filed a counterclaim for damages amounting to less than $1,500 based upon Florida Paving Company’s poor workmanship and damage to his property, but the counterclaim was dismissed as untimely filed. Singer then filed an action in circuit court alleging damages in excess of $5,000. Upon Singer’s motion, Florida Paving Company’s cause of action against Singer was transferred to circuit court to be heard in conjunction with Singer’s action against Florida Paving Company. Florida Paving Company responded to the action brought in circuit court by filing a motion to strike and dismiss Singer’s complaint. The court granted the motion * and this appeal ensued. We reject the argument by Florida Paving Company that the jurisdictional amount alleged in the complaint was subject to challenge because it did not allege a jurisdictional amount in excess of $5,000 “in good faith.” Richter Jewelry Co. v. Harrison, 147 Fla. 732, 733, 3 So. 2d 387, 388 (1941).
Although Florida Paving Company urges the correct test for determining jurisdiction, this case turns on the well-established principle that a trial court’s ruling on a motion to dismiss is confined to the allegations within the four corners of the complaint.
The trial court is required to accept the allegations as true and may not speculate as to the ultimate facts to be proved during trial. Emile v. Florida Power & Light Co., 426 So. 2d 1152 (Fla. 3d DCA 1983); Dunnell v. Malone & Hyde, Inc., 425 So. 2d 646 (Fla. 3d DCA 1983). In addition, the complaint was not necessarily inherently false and should not have been striken as a sham. Jaruagua Enterprises, Inc. v. Bom, Inc., 339 So. 2d 702 (Fla. 3d DCA 1976); Slatko v. Virgin, 328 So. 2d 499 (Fla. 3d DCA 1976).
We also reject appellee’s contention that res judicata principles bar the filing of Singer’s independent claim in circuit court. A party who has failed to interpose a compulsory counterclaim in a lawsuit which remains pending may nevertheless file an independent action on the same claim. Cheezem Development Corp. v. Maddox Roof Service, Inc., 362 So. 2d 99 (Fla. 2d DCA 1978), cert. denied, 368 So. 2d 1370 (Fla.1979). Even though a counterclaim has been dismissed with prejudice, it may be refiled as an independent action while the initial lawsuit remains pending. See Travelers Express, Inc. v. Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981).
For these reasons, we reverse the trial court’s dismissal and remand for further proceedings.
*
Although the order granting the motion to strike and dismiss the complaint did not specify that it was with prejudice, a dismissal other than for lack of jurisdiction or for improper venue or for lack of an indispensible party operates as an adjudication on the merits. Fla.R.Civ.P. 1.420(b).
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Raphael Shabtai v. Flea Mkt. U.S.A., Inc., 758 So. 2d 1148 (Fla. 3d DCA 2000)…PER CURIAM. Affirmed. See Singer v. Florida Paving Co., Inc., 459 So. 2d 1146 (Fla. 3d DCA 1984); Cheezem Dev. Corp. v. Maddox Roof Serv., Inc., 362 So. 2d 99 (Fla. 2d DCA 1978), cert. denied, 368 So. 2d 1370 (Fla.1979).…
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First Pac. Corp. v. Sociedade de Empreendimentos e Construcoes, 566 So. 2d 3 (Fla. 3d DCA 1990)…int are assumed to be true and all reasonable inferences are allowed in favor of the plaintiff.” Ralph v. City of Daytona Beach, 471 So. 2d 1 (Fla.1983). If the allegations in SECL’s complaint are accepted as true, Singer v. Florida Paving Co., [*5] 459 So. 2d 1146 (Fla. 3d DCA 1984); Emile v. Florida Power & Light Co., 426 So. 2d 1152 (Fla. 3d DCA 1983), the trial court acted properly in denying the motion to dismiss. We therefore affirm the trial court’s order, and remand for further proceedings. Appellant…
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Walsh v. Arrow AIR, Inc., 629 So. 2d 144 (Fla. 3d DCA 1993)…(Fla. 3d DCA 1990), rev. denied, 581 So. 2d 1307 (Fla.1991). . The material facts are taken from the complaint and must be accepted as true for the purpose of a motion to dismiss for failure to state a cause of action. Singer v. Florida Paving Co., 459 So. 2d 1146 (Fla. 3d DCA 1984). . Section 448.102 provides: Prohibitions. — An employer may not take any retaliatory personnel action against an employee because the employee has: (1) Disclosed, or threatened to disclose, to any appropriate governmental agen…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richter Jewelry Co., Inc. v. Mrs. Clara Harrison, 147 Fla. 732 (Fla. 1941)
- Travelers Express, Inc. v. Myriam Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981)
- Slatko v. Virgin, 328 So. 2d 499 (Fla. 3d DCA 1976)
- Cheezem Dev. Corp. v. Maddox Roof Serv., Inc., 362 So. 2d 99 (Fla. 2d DCA 1978)
- Jaruagua Enters., Inc. v. DOM, Inc., 339 So. 2d 702 (Fla. 3d DCA 1976)
- Charite Emile v. Fla. Power & Light Co., 426 So. 2d 1152 (Fla. 3d DCA 1983)
- Rappaport v. Finesod, 425 So. 2d 646 (Fla. 3d DCA 1983)
- Dunnell v. Malone & Hyde, Inc., 425 So. 2d 646 (Fla. 3d DCA 1983)