DIRK D. EHMANN, ET AL., APPELLANTS,
v.
FLORIDA NATIONAL BANK AT OCALA, APPELLEE
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COBB, Judge.
In this case the trial judge dismissed the plaintiffs’ complaint based upon an existing court file with which he was familiar. On a motion to dismiss, the court must look solely to the complaint and may not consider defenses which do not appear on the face of the complaint. Margerum v. Ross Builders, Inc., 427 So. 2d 261 (Fla. 5th DCA 1983); Lewis v. Connecticut General Life Insurance Company, 427 So. 2d 254 (Fla. 5th DCA 1983); Frank v. Campbell Property Management, Inc., 351 So. 2d 364 (Fla. 4th DCA 1977). It is conceded that the allegations in the instant complaint state a cause of action, and that no determinative affirmative defense appears on the face of the pleading. Basically, the trial court’s action has improperly substituted a motion to dismiss for a motion for summary judgment. See Temples v. Florida Industrial Construction Company, Inc., 310 So. 2d 326 (Fla. 2d DCA 1975).
Accordingly, the order entered below is
REVERSED and REMANDED.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Forest Creek Dev. Co. v. Liberty Sav. & Loan Ass'n, 531 So. 2d 356 (Fla. 5th DCA 1988)…of a complaint. As in this case, a waiver defense depends upon allegations of facts and their subsequent proof.1 This issue cannot be determined on the basis of Forest’s amended complaint. See, e.g., Ehmann v. Florida National [*358] Bank at Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987). AFFIRMED in part, REVERSED in part, REMANDED. DAUKSCH and COWART, JJ., concur. . "Waiver" is an intentional or voluntary relinquishment of a known right or conduct which infers such relinquishment. The essential elements of w…
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Bd. of Cnty. Comm'rs of Polk Cnty. v. The AETNA Cas. & Sur. Co. & Barton Malow Co., 604 So. 2d 850 (Fla. 2d DCA 1992)…pleading, and we have not found any cases in Florida specifically defining the term as it appears in Rule 1.110(d). A number of cases hold that affirmative defenses must appear on the face of the complaint. Ehmann v. Florida National Bank at Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987); Vaswani v. Ganobsek, 402 So. 2d 1350 (Fla. 4th DCA 1981); Frank v. Campbell Property Management, Inc., 351 So. 2d 364 (Fla. 4th DCA 1977); Ecological Science Corp. v. Boca Ciega Sanitary Dist, 317 So. 2d 857 (Fla. 2d DCA 1975).…
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Bozeman v. Hernando Cnty., 548 So. 2d 300 (Fla. 5th DCA 1989)…red the motion as one for summary judgment. The trial court then proceeded to enter summary judgment in favor of appellees based upon information which was not set forth in the complaint. This was error. See Ehmann v. Florida National Bank at Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987). Application of the proper standard of review to the instant case reveals that dismissal of count I (the third party beneficiary count) of Bozeman’s complaint is warranted because the complaint, standing alone, indicates that Ha…
Authorities Cited
- Temples v. Fla. Indus. Constr. Co., Inc., 310 So. 2d 326 (Fla. 2d DCA 1975)
- Giesela Frank v. Campbell Prop. Mgmt., Inc., 351 So. 2d 364 (Fla. 4th DCA 1977)
- The Heirs OF the Est. OF Dorothy O. Waldon v. Rotella, 427 So. 2d 261 (Fla. 5th DCA 1983)
- Margerum v. Ross Builders, Inc., 427 So. 2d 261 (Fla. 5th DCA 1983)
- Lewis v. Conn. Gen. Life Ins. Co., 427 So. 2d 254 (Fla. 5th DCA 1983)