SOVRAN BANK, N.A., APPELLANT,
v.
DONALD PARSONS, APPELLEE
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The court held that the complaint sufficiently stated a cause of action and should not have been dismissed with prejudice.
Appellant's second amended complaint was dismissed with prejudice. The appellee argued that the foreign judgment sued upon was not recognizable as a f…
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PER CURIAM.
We reverse the order which dismissed appellant’s second amended complaint with prejudice and remand for further proceedings.
Applying the basic rules, that upon motion to dismiss the court’s gaze is limited to the four corners of the complaint and that all well pleaded allegations therein are taken as true, City of Hallandale v. Gulfstream Park Racing Association, Inc., 440 So. 2d 1328 (Fla. 4th DCA 1983); National Financing Corporation v. Weiche, 371 So. 2d 707 (Fla. 4th DCA 1979); Wenner v. Foster, 336 So. 2d 1248 (Fla. 4th DCA 1976), we are of the opinion that this complaint sufficiently stated a cause of action, and as such, should have survived the motion to dismiss proceedings. In re Forfeiture of Following Described Property: Six Video Draw Poker Machines, Twelve Slot Machines, Five Coin Operated Machines, One Silver Jubilee, 544 So. 2d 1097 (Fla. 1st DCA 1989).
We are mindful of appellee’s position that the foreign judgment being sued upon was not recognizable as a final judgment. It is our view that the Florida Rules of Civil Procedure, specifically Rule 1.110 and Rule 1.120, envision that appellee should file its answer and affirmative defenses, as it is advised, whereupon the issues may be drawn, litigated, and decided.
In sum we hold that the dismissal was premature. Lipman v. Vanowen Realty Corp., 528 So. 2d 1384 (Fla. 4th DCA 1988); Avila v. Pacindat Mutual Protection & Indemnity Association, Ltd., 528 So. 2d 510 (Fla. 3rd DCA 1988).
REVERSED AND REMANDED.
ANSTEAD, WALDEN and GUNTHER, JJ., concur.
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Aaron v. Allstate Ins. Co., 559 So. 2d 275 (Fla. 4th DCA 1990)…e court’s scope of review is relatively narrow. The court merely looks to the four corners of the complaint to determine whether it states a cause of action. The court takes all well pleaded allegations therein as true. Sovran Bank, N.A. v. Parsons, 547 So. 2d 1044 (Fla. 4th DCA 1988.) In the instant case the initial question is whether Aaron could assign to Mickler her cause of action against Allstate for failure to provide an adequate defense. Although it is clear that a malpractice ac [*277] tion cannot be…
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Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993)…d look only to the four corners of the pleading and the allegations should be taken as true without regard of ability of pleader to prove the same. Gilbert v. Oil Conservation, Inc., 460 So. 2d 1027 (Fla. 4th DCA 1984); Sovran Bank, N.A. v. Parsons, 547 So. 2d 1044 (Fla. 4th DCA 1989); Alexander, supra. Leave to amend should be liberally given and a dismissal with prejudice is not proper unless the privilege to amend has been abused, or it is clear that the pleading cannot be amended to state a cause of actio…
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Shahid v. Campbell, 552 So. 2d 321 (Fla. 1st DCA 1989)…r, the complaint need not anticipate affirmative defenses, Thompson v. Martin, 530 So. 2d 495, 496 (Fla. 2d DCA 1988). Any defenses should be stated by the defendants in an answer so that issues can be drawn. Sovran Equity Mortgage Corp. v. Parsons, 547 So. 2d 1044 (Fla. 4th DCA 1989). In short, if the pleader alleges the necessary elements of the cause of action, the complaint states a cause of action. In this case, the second amended complaint states that the parties, a limited partnership and individuals r…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wenner v. Foster, 336 So. 2d 1248 (Fla. 4th DCA 1976)
- Bradberry v. Atl. Bank OF ST. Augustine, 336 So. 2d 1248 (Fla. 1st DCA 1976)
- Nat'l Fin. Corp. v. Weiche, 371 So. 2d 707 (Fla. 4th DCA 1979)
- City OF Hallandale v. Gulfstream Park Racing Ass'n, Inc., 440 So. 2d 1328 (Fla. 4th DCA 1983)
- Avila v. Pacindat Mut. Prot. & Indem. Ass'n, Ltd., 528 So. 2d 510 (Fla. 3d DCA 1988)
- In re Forfeiture OF the Following Described Prop. SIX Video Draw Poker Machs., 544 So. 2d 1097 (Fla. 1st DCA 1989)
- Murray Lipman v. Vanowen Realty Corp., 528 So. 2d 1384 (Fla. 4th DCA 1988)
- Maul v. State, 528 So. 2d 1384 (Fla. 4th DCA 1988)