BANK OF CENTRAL FLORIDA, ETC., APPELLANT,
v.
ZELLWOOD FARMERS MARKET, INC., ETC., ET AL., APPELLEES
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Bank of Central Florida appealed the dismissal of its complaint alleging that Earl and Norma Fisher were co-makers on a promissory note, and the entry of summary judgment in the Fishers' favor on their counterclaim regarding a setoff against their personal accounts. The court reversed, holding that the bank's allegations that the Fishers signed both in representative and individual capacities stated a cause of action and should not have been dismissed at the pleading stage.
The court held that the bank's allegations, taken as true, clearly stated a cause of action against the Fishers individually. The trial court erred in dismissing the complaint with prejudice because although the Fishers may eventually establish they are not personally liable, they have not done so at the motion to dismiss stage. Consequently, the summary judgment entered on the Fishers' counterclaim was also erroneous.
[1] A complaint alleging that individuals signed a promissory note both in their representative capacity and as individual co-makers states a cause of action against them ind…
[2] For purposes of a motion to dismiss for failure to state a cause of action, the allegations of the complaint are assumed to be true and all reasonable inferences arising…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“For the purposes of a motion to dismiss for failure to state a cause of action, the allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff.”
Establishes the standard of review for motions to dismiss and that the bank's allegations must be taken as true.
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Join FLexlaw to unlock all legal intelligenceIn 1987, Zellwood Farmers Market, Inc. defaulted on a $25,000 loan from Bank of Central Florida. The promissory note identified Zellwood as the borrow…
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DANIEL, Judge.
The Bank of Central Florida appeals a dismissal with prejudice of its complaint against Earl and Norma Fisher and the entry of summary judgment in the Fishers’ favor on their counterclaim. The bank argues that its complaint stated a cause of action and should not have been dismissed. We agree and reverse. Because the summary judgment was predicated on the dismissal of the complaint, we also reverse the summary judgment and remand the case for further proceedings.
In 1987, Zellwood Farmers Market, Inc. defaulted on a $25,000 loan from the bank. The promissory note securing the obligation identified Zellwood Farmers Market, Inc. as the borrower and was signed twice by Zellwood’s president Earl Fisher and vice president Deborah Ray and once by Fisher’s wife Norma and Ray’s husband Ronald. The bank filed suit against Zell-wood, the Fishers and the Rays to recover on the note. The bank also seized the Fishers’ personal savings account and certificate of deposit for use as a setoff against the amount due under the note. In their counterclaim against the bank, the Fishers alleged that they had signed the note only in their representative capacity as officers of Zellwood and accordingly the bank had no right of setoff against their personal accounts.
The bank then filed its second amended complaint which alleged that Earl Fisher and Deborah Ray were officers of Zell-wood, that Earl Fisher and Deborah Ray signed the note of behalf of Zellwood and that the Fishers and the Rays also individually signed and were co-makers of the note with Zellwood.
The trial court found that the promissory note was unambiguous and showed a clear intent on behalf of the bank and the parties that the Fishers and the Rays were signing only in their representative capacities.
Accordingly the trial court granted the Fishers’ motion to dismiss the second amended complaint with prejudice. The Fishers then moved for summary judgment on their counterclaim alleging that the dismissal eliminated any liability on their part under the note and extinguished any right to the savings account and certificate of deposit by the bank.
The trial court held that in light of its prior ruling, the bank was not entitled to a setoff and ordered the return of the funds in the savings account and the certificate of deposit to the Fishers.
For the purposes of a motion to dismiss for failure to state a cause of action, the allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff. Ralph v. City of Daytona Beach, 471 So. 2d 1 (Fla.1983).
Here the bank alleged that Earl Fisher and Deborah Ray signed the note in their representative capacity. The bank also alleged that the Fishers and the Rays had signed in their individual capacities as co-makers of the note. Taken as true, these allegations clearly state a cause of action against the Fishers individually. See Havatampa Corporation v. Walton Drug Company, Inc., 354 So. 2d 1235 (Fla. 2d DCA 1978).
Although the Fishers may eventually establish that they are not personally liable on the note,1 they have not done so at this stage and the complaint should not have been dismissed. See Fincher Motors, Inc. v. Carriage Trade Auto Brokers, 421 So. 2d 673 (Fla. 3d DCA 1982) (although maker may eventually establish that he was not personally obligated to payee on instrument, maker had not done so within complaint and therefore dismissal of the complaint was error).
Since the complaint should not have been dismissed, the trial court erred in entering summary judgment on the Fishers’ counterclaim because the bank may be entitled to use the savings account and certificate of deposit if the Fishers are individually liable on the note.
REVERSED and REMANDED.
ORFINGER and COBB, JJ., concur. . See § 673.403(2), Fla.Stat. (1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williamson v. Bertino, 685 So. 2d 93 (Fla. 4th DCA 1997)…o avoid personal liability — the agent is “personally obligated” except as “otherwise established” by the agent. See Tampa Bay Economic Dev. Corp. v. Edman, 598 So. 2d 172, 174 (Fla. 2d DCA 1992); Bank of Cent. Florida v. Zellwood Farmers Mkt. Inc., 543 So. 2d 455 (Fla. 5th DCA 1989). Section 673.403(3), applies when the note appears to have been signed in an agency capacity; that is, when the note contains the “name of an organization preceded or followed by the name and office of an authorized individual.”…
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Hutt v. Nichols, 652 So. 2d 427 (Fla. 5th DCA 1995)…and REMANDED. DAUKSCH and PETERSON, JJ., concur. . Ralph v. City of Daytona Beach, 471 So. 2d 1 (Fla.1983); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881 (Fla.1972); Bank of Central Florida v. Zellwood Farmers Market, Inc., 543 So. 2d 455 (Fla. 5th DCA 1989). . § 316.072(5), Fla.Stat. (1993). . Vienneau v. Metropolitan Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989); Poulous v. Vordermeier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976).…
Authorities Cited
- Orla Ralph v. City OF Daytona Beach, 471 So. 2d 1 (Fla. 1983)
- Havatampa Corp. v. Walton Drug Co., Inc., 354 So. 2d 1235 (Fla. 2d DCA 1978)
- Fincher Motors, Inc. v. Carriage Trade Auto Brokers, 421 So. 2d 673 (Fla. 3d DCA 1982)