SIGMA FINANCIAL CORPORATION, A MICHIGAN CORPORATION, AND JEROME S. RYDELL, AN INDIVIDUAL, APPELLANTS,
v.
INVESTMENT LOSS RECOVERY SERVICES, INC., A FLORIDA CORPORATION, NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., BRIAN J. SHEEN, HOWARD HUGHES, AND JOANNE HUGHES, JOINTLY AND SEVERALLY, APPELLEES
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Sigma Financial Corporation and Jerome Rydell appealed the dismissal of their complaint against Investment Loss Recovery Services, Inc. and others, challenging claims of unauthorized practice of law and defamation. The court affirmed dismissal of most counts but reversed the dismissal of the defamation claim, finding the motion to dismiss was based on matters outside the complaint.
The court affirmed dismissal of counts I, II, III, and V but reversed the dismissal of count IV (defamation). Counts I, II, and III were properly dismissed because only the Florida Bar has exclusive authority to prosecute unauthorized practice of law claims, and the alleged deceptive practices were not directed at appellants. Count IV was improperly dismissed because the motion to dismiss relied on matters outside the complaint's four corners. Count V was properly dismissed as it did not state a recognizable cause of action.
[1] The Florida Bar is exclusively vested with the authority to prosecute claims for the unauthorized practice of law.
[2] A claim seeking to enjoin deceptive and unfair trade practices is barred if the underlying conduct is exclusively the domain of the Florida Bar's authority to prosecute u…
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Join FLexlaw to unlock all legal intelligence“the Florida Bar, as the official arm of the supreme court, is exclusively vested with the authority to prosecute claims for the unauthorized practice of law”
Establishes that only the Florida Bar can bring unauthorized practice of law claims, barring appellants' standing to do so
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Join FLexlaw to unlock all legal intelligenceAppellants alleged that appellees ILRS and Sheen were engaged in unauthorized practice of law and defamed appellants by filing arbitration complaints …
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PER CURIAM.
The appellants challenge the dismissal of their complaint for injunction and defamation. Appellants allege in their complaint that appellees, Investment Loss Recovery Services, Inc. (ILRS) and Sheen, are engaged in the unauthorized practice of law and have defamed them in filing arbitration complaints against appellants to recover investor losses suffered by the “clients” of Sheen and ILRS. We affirm, except as to count IV.
Count I of the complaint seeks to enjoin the unauthorized practice of law by Sheen and ILRS. In Dade-Commonwealth Title Insurance Co. v. North Dade Bar Ass’n, 152 So. 2d 723 (Fla.1963), the supreme court held that the Florida Bar, as the official arm of the supreme court, is exclusively vested with the authority to prosecute claims for the unauthorized practice of law. Dade-Commonwealth is controlling of this case.
Under count II, the appellants sought an injunction against Sheen and ILRS for the same conduct claiming deceptive and unfair trade practices under section 501.211, Florida Statutes (1993). Count III sought to declare ILRS and Sheen’s business a nuisance on the same grounds. Because Counts I, II, and III all sought to declare the conduct as constituting the unauthorized practice of law and to enjoin ILRS and Sheen from continuing their business, we believe Dade-Common-wealth controls. Moreover, the deceptive trade practices, if any, were not directed at the appellants but instead were directed at ILRS and Sheen’s “clients.”
In Count IV, the appellants asserted a cause of action for defamation. The appel-lees moved to dismiss on the ground that the claim was premature, as the truth or falsity of the allegations was being determined in arbitration proceedings. The grounds of the motion to dismiss go to matters that are not within the four corners of the complaint and, therefore, dismissal on these grounds was error. We do, however, affirm the dismissal of count V in which the appellants alleged that because appellees published defamatory statements about appellants, ILRS and Sheen’s business is a nuisance. This does not state any recognizable cause of action.
We therefore affirm the dismissal of counts I, II, III, and V. We reverse the dismissal of count IV and remand for further proceedings consistent with this opinion.
Affirmed in part; reversed in part.
WARNER and SHAHOOD, JJ., and SPEISER, MARK A., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Barbado v. Green & Murphy, P.A., 758 So. 2d 1173 (Fla. 4th DCA 2000)…nt. Bess v. Eagle Capital, Inc., 704 So. 2d 621 (Fla. 4th DCA 1997). A court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations. Id.; Sigma Fin. Corp. v. Investment Loss Recovery Servs., Inc., 673 So. 2d 572 (Fla. 4th DCA 1996); Fish v. Post of Amvets No. 85, 560 So. 2d 337, 339 (Fla. 1st DCA 1990)(“Where a complaint is dismissed based on extraneous evidence leading the judge to believe that the plaintiff is not entitled to relief, the judge has reversi…
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Bess v. Eagle Cap., Inc., 704 So. 2d 621 (Fla. 4th DCA 1997)…appeal. A motion to dismiss tests the legal sufficiency of the complaint. Thus, in ruling on a motion to dismiss, the court may not look beyond the four corners of the complaint itself. See Sigma Fin. Corp. v. Investment Loss Recovery Servs., Inc., 673 So. 2d 572 (Fla. 4th DCA 1996); Bolz v. State Farm Mut. Auto. Ins. Co., 679 So. 2d 836, 837 (Fla. 2d DCA 1996). Because of this limitation, generally, collateral estoppel is an affirmative defense which must be raised in an answer. See Palmer v. McCallion, 645…
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Coriat v. Global Assurance Grp., Inc, 862 So. 2d 743 (Fla. 3d DCA 2003)…ency, 664 So. 2d at 1107. The arbitration clause referred to in the motion to dismiss was not part of the complaint nor was it an attachment. Therefore dismissal on these grounds was incorrect. See Sigma Fin. Corp. v. Inv. Loss Recovery Serv., Inc., 673 So. 2d 572 (Fla. 4th DCA 1996). Accordingly, the order below is reversed. Reversed.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dade-Commonwealth Title Ins. Co. v. N. Dade BAR Ass'n, Inc., 152 So. 2d 723 (Fla. 1963)