GAMMA DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
PAUL B. STEINBERG, AND THE LAW OFFICES OF STEINBERG, MERLIN & SLEWETT, P.A., APPELLEES
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Gamma Development Corporation appealed the dismissal with prejudice of its civil theft and conversion claims against an attorney and law firm that had applied escrowed funds to pay attorney fees. The court reversed, holding that dismissal with prejudice was improper because nominal and treble damages are available even after funds are returned, and the complaint stated potential causes of action.
The court reversed the dismissal with prejudice, holding that even after funds are returned, nominal damages are available in conversion actions and treble damages are allowed for civil theft under Florida law, so a cause of action can still exist. Dismissal with prejudice is improper unless the right to amend has been abused or the pleading clearly cannot be amended to state a cause of action.
[1] A motion to dismiss a complaint tests whether the complaint alleges a cause of action upon which relief can be granted, considering only the pleading's four corners and t…
[2] Leave to amend a pleading should be liberally granted, and dismissal with prejudice is improper unless the privilege to amend has been abused or it is clear the pleading…
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“A motion to dismiss a complaint is solely to determine whether the complaint has alleged a cause of action upon which relief can be granted.”
Establishes the limited scope of review for motions to dismiss—the court must only determine if a cause of action is stated, not resolve factual disputes.
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Join FLexlaw to unlock all legal intelligenceGamma filed suit against Steinberg and his law firm, initially for breach of contract and to foreclose an equitable lien on escrowed funds allegedly o…
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ROSS, J., Associate Judge.
This is an appeal of a dismissal with prejudice of a complaint for civil theft and conversion.
Appellant Gamma originally filed an action against defendants Michael Gouin, Paul B. Steinberg and the Law Offices of Steinberg, Merlin & Slewett for breach of contract and to establish and foreclose an equitable lien against the escrow account of the Law Office. Gamma claimed the escrowed funds held by the Law Office were due from Gouin to Gamma for the payment of a promissory note. Through discovery, it was learned that the escrowed funds were removed from the Law Office escrow account and applied against an outstanding attorney fee bill owed from Gouin to the Law Office. Gamma then amended its complaint to include counts of civil theft and conversion against the Law Office and Steinberg. Steinberg and the Law Office ultimately filed a motion to dismiss the complaint and to interplead the funds into the registry of the court.
A hearing was held upon appellees’ motion to dismiss. The motion to dismiss was granted with prejudice and rehearing was denied. The trial court did not articulate or state its reasons for the dismissal with prejudice.
A motion to dismiss a complaint is solely to determine whether the complaint has alleged a cause of action upon which relief can be granted. Alexander Hamilton Corporation v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987). The trial court should 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 action. Dryden v. Bogard, 488 So. 2d 672 (Fla. 4th DCA 1986); Kairalla v. Mac Arthur Foundation, 534 So. 2d 774 (Fla. 4th DCA 1988); Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621 (Fla. 4th DCA 1984); Horacio O. Ferrea North American Division, Inc. v. Moroso Performance Products, Inc., 553 So. 2d 336 (Fla. 4th DCA 1989).
Appellee advanced the argument, that since the disputed funds had been returned (interpled) there was no legal basis to assess damages, and as a result, no cause of action could exist. This argument fails to -recognize that nominal damages are available in conversion actions, and treble damages are allowed for civil theft. See § 772.11, Fla.Stat. (1991); see also King v. Saucier, 356 So. 2d 930, 931 (Fla.2d DCA 1978) (where a party claims an invasion of a legal right, nominal damages are appropriate) (quoting Hutchinson v. Tompkins, 259 So. 2d 129 (Fla.1972)).
From the record, it cannot be determined that the privilege to amend has been abused. Nor is it clear that the pleadings cannot be amended to state a cause of action.
We reverse insofar as the dismissal is with prejudice.
STONE and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996)…513 (Fla. 4th DCA 1987). The trial court must look only to the four corners of the complaint and the allegations contained therein should be taken as true without regard to the pleader’s ability to prove the same. Id.; Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993). Generally, one has standing to sue when he or she has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. Gieger v. Sun First Nat'l Bank of Orlando, 427 So. 2d 815 (Fla. 5th…
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Irve Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4th DCA 1999)…leading cannot be amended to state a cause of action.” Kairalla v. John D. and Catherine T. MacArthur Found., 534 So. 2d 774, 775 (Fla. 4th DCA 1988). The opportunity to amend a complaint should be liberally given. See Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993); Dryden Water [*1004] proofing, Inc. v. Bogard, 488 So. 2d 672, 673 (Fla. 4th DCA 1986) (“[L]eave to amend a complaint should be freely granted when justice so requires and it should not be denied unless the privilege has been ab…
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Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232 (Fla. 4th DCA 2001)…r breach of the implied duty of good faith and fair dealing. While the granting of motions to dismiss with prejudice is generally not favored, it is proper if the pleading cannot be amended to state a cause of action. Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718, 719 (Fla. 4th DCA 1993). After three attempts, the Plaintiff has demonstrated that it cannot amend its pleading to state a cause of action. The decision of the trial court is affirmed. WARNER, C.J., STEVENSON and HAZOURI, JJ., concur.…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hutchison v. Tompkins, 259 So. 2d 129 (Fla. 1972)
- Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods., Inc., 553 So. 2d 336 (Fla. 4th DCA 1989)
- In re Tr. Agreement of Jane Greer Kelly, 448 So. 2d 621 (Fla. 4th DCA 1984)
- Mendez v. State, 534 So. 2d 774 (Fla. 4th DCA 1988)
- Dryden Waterproofing, Inc. v. Bogard, 488 So. 2d 672 (Fla. 4th DCA 1986)
- Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987)
- King v. Saucier, 356 So. 2d 930 (Fla. 2d DCA 1978)
- Sovran Bank, N.A. v. Parsons, 547 So. 2d 1044 (Fla. 4th DCA 1989)
- Judd Gilbert v. OIL Conservationists, Inc., 460 So. 2d 1027 (Fla. 4th DCA 1984)