BETTY BOZEMAN, ETC., APPELLANT,
v.
HERNANDO COUNTY, ET AL., APPELLEES
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Betty Bozeman, as guardian for an injured patient, appealed a summary judgment dismissing her complaint against a hospital and county. The court held that while the third-party beneficiary claim should be dismissed, the negligence claim based on apparent agency should proceed to trial, reversing the trial court's improper conversion of a motion to dismiss into a summary judgment motion.
The court held that the trial court erred by converting the motion to dismiss into a summary judgment motion without proper notice and by considering evidence outside the complaint. The third-party beneficiary count should be dismissed because the complaint indicated Harrington was at most an incidental beneficiary, but the negligence count should proceed because the allegations sufficiently stated a cause of action based on the apparent agency doctrine.
[1] A trial court errs when it sua sponte treats a motion to dismiss as a motion for summary judgment and enters summary judgment based on information outside the complaint.
[2] A motion to dismiss tests the legal sufficiency of a complaint, assuming all allegations are true.
Previewing 2 of 5 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“In ruling on a motion to dismiss the ultimate question before the trial court is whether, assuming the plaintiff is able to prove all of the allegations set forth in the complaint, such would establish a cause of action against the defendant.”
Establishes the proper standard for reviewing a motion to dismiss—a facial sufficiency test assuming all allegations are proven.
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Join FLexlaw to unlock all legal intelligenceIn May 1981, Carolyn Harrington sought emergency medical treatment at Lykes Memorial Hospital's emergency room and was allegedly injured due to neglig…
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DANIEL, Chief Judge.
Appellant Betty Bozeman, as guardian for Carolyn Harrington, has taken this appeal from the final order of summary judgment entered in favor of appellees Hernan-do County and Board of Trustees of Lykes Memorial Hospital.
Bozeman instituted this action by filing a complaint against Hernando County and the Board of Trustees of Lykes Memorial Hospital. In her complaint Bozeman alleges that in May of 1981, Carolyn Harrington arrived at the emergency room of Lykes Memorial Hospital seeking emergency medical treatment and that Harrington was injured as a result of negligent medical care which she received from the emergency room physicians. Bozeman sought to impose liability upon appellees based on the theory of negligence as well as on the theory that Harrington was a third party beneficiary of the employment contract between the hospital and the emergency room physicians. Appellees filed a motion to dismiss Bozeman’s complaint, asserting that the complaint failed to set forth a cause of action upon which relief could be granted. Following, a hearing on appellees’ motion to dismiss, the trial court entered an order which granted summary judgment in favor of appellees.
On appeal Bozeman contends that it was error for the trial court to, sua sponte, enter summary judgment in favor of appel-lees. We agree.
It is settled law that the function of a motion to dismiss is to raise a question of law concerning the sufficiency of the plain-, tiff’s complaint. In ruling on a motion to dismiss the ultimate question before the trial court is whether, assuming the plaintiff is able to prove all of the allegations set forth in the complaint, such would establish a cause of action against the defendant. Lanzo Construction Company, Florida v. Orange County, Florida, Camp, Dresser and McKee, Inc., 546 So. 2d 432 (Fla. 5th DCA 1989). See also Dawson v. Blue Cross Association, 293 So. 2d 90 (Fla. 1st DCA 1974).
In contrast, when reviewing a motion for summary judgment, the trial court is not limited simply to the four corners of the complaint. Rather, the trial court is able to review the pleadings, depositions and admissions on file, together with the affidavits, if any, in order to determine whether the moving party is entitled to judgment as a matter of law. Odham v. Foremost Dairies, Inc., 128 So. 2d 586 (Fla.1961). Here, appellees filed a motion to dismiss Bozeman’s complaint; however, the trial court sua sponte considered 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 Harrington was at most an incidental third party beneficiary of the stated employment contract. See Aetna Casualty & Surety Company v. Jelac Corporation, 505 So. 2d 37 (Fla. 4th DCA 1987); Health Application Systems v. Hartford Life and Accident Insurance Company, 381 So. 2d 294 (Fla. 1st DCA 1980).
However, dismissal of count II (the negligence count) is not warranted because the allegations set forth in the complaint are sufficient to state a cause of action against appellees on the theory that the emergency room physicians were apparent agents of the hospital. See Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982). See also Insinga v. La Bella, 543 So. 2d 209 (Fla.1989) (the supreme court acknowledged the viability of a negligence action against a hospital based on the theory of apparent agency while authorizing the recognition of the corporate negligence doctrine.)
Accordingly, we affirm the dismissal of count I, reverse the dismissal of count II, and remand the matter to the trial court for proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; REMANDED.
DAUKSCH, J., and ORFINGER, Retired, concur.
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Bambi Lynn Marini Detwiler v. Bank OF Cent. Fla., 736 So. 2d 757 (Fla. 5th DCA 1999)…ld be able to maintain an action for breach of fiduciary duty under New York law. However, case law demonstrates that Ms. Det-wiler cannot maintain an action for breach of fiduciary duty under the law of either state. See Bozeman v. Hernando County, 548 So. 2d 300 (Fla. 5th DCA 1989)(holding that a de novo standard of review pertains to an order of dismissal.) Under Florida law, a cause of action for breach of fiduciary duty will not lie where the claim of breach is dependent upon the existence of a contract…
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The Hous. Auth. of the City of Orlando v. Bradley (9th Cir. Ct. App. Div. 2014)…. Fencl, 701 So. 2d. 121 (Fla. 5th DCA 1997) (explaining that a motion to dismiss a complaint is not a motion for summary judgment in which the court may rely on facts adduced in depositions, affidavits, or other proofs); Bozeman v. Hernando County, 548 So. 2d 300, 301 (Fla. 5th DCA 1989) (holding that the trial court erred when reviewing a motion to dismiss by granting summary judgment based upon information which was not set forth in the complaint). However, this Court concurs with Bradley that at the hear…
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Authorities Cited
- Odham v. Foremost Dairies, Inc., 128 So. 2d 586 (Fla. 1961)
- Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982)
- Health Application Sys., Inc. v. Hartford Life & Accident Ins. Co. & State of Fla. Dep't of Health & Rehabilitative Servs., 381 So. 2d 294 (Fla. 1st DCA 1980)
- Bell v. State, 293 So. 2d 90 (Fla. 2d DCA 1974)
- Dawson v. Blue Cross Ass'n, 293 So. 2d 90 (Fla. 1st DCA 1974)
- Insinga v. LaBELLA, 543 So. 2d 209 (Fla. 1989)
- The AETNA Cas. & Sur. Co. v. Jelac Corp., 505 So. 2d 37 (Fla. 4th DCA 1987)
- Dirk D. Ehmann v. Fla. Nat'l Bank AT Ocala, 515 So. 2d 1063 (Fla. 5th DCA 1987)
- Lanzo Constr. Co. v. Orange Cnty., 546 So. 2d 432 (Fla. 5th DCA 1989)
- Davidson Drugs, Inc. v. Staunton R. Harrison, 546 So. 2d 432 (Fla. 2d DCA 1989)