FREDERICK VISOR, APPELLANT,
v.
MICHAEL BUHL, INDIVIDUALLY, MICHAEL VIDULICH, INDIVIDUALLY, AND ANTHONY TOSCANO, INDIVIDUALLY, APPELLEES
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Frederick Visor appealed the dismissal of his complaint against three defendants for RICO violations, conspiracy, breach of fiduciary duty, and fraud claims. The Fourth District Court of Appeal reversed the dismissal of Visor's fraud claims and all claims against one defendant who failed to file a motion to dismiss, while affirming the dismissal of RICO and fiduciary duty claims against the other defendants.
The court reversed the dismissal of Visor's negligent misrepresentation, fraudulent inducement, and common law fraud claims against Vidulich and Toscano because Visor sufficiently alleged these causes of action and there remained a factual question regarding whether the statute of limitations barred the claims. The court also reversed the dismissal of all claims against Buhl because he waived the motion to dismiss defense by failing to file such a motion. The court affirmed the dismissal of the RICO and breach of fiduciary duty claims.
[1] An appellate court reviews a trial court's determination on a motion to dismiss de novo.
[2] When reviewing a trial court's order on a motion to dismiss, an appellate court must accept the facts alleged in the complaint as true and draw all reasonable inferences…
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Join FLexlaw to unlock all legal intelligence“An appellate court must accept the facts alleged in the complaint as true when reviewing a trial court's order determining the sufficiency of the complaint.”
Establishes the standard for reviewing motions to dismiss on appeal
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Join FLexlaw to unlock all legal intelligenceFrederick Visor filed a complaint against Michael Buhl, Michael Vidulich, and Anthony Toscano alleging violations of Florida's RICO Act, conspiracy to…
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PER CURIAM.
Appellant Frederick Visor (Visor) filed a complaint against Michael Buhl (Buhl), Michael Vidulich (Vidulich), and Anthony Toscano (Toscano) for violation of Florida!s RICO Act, conspiracy to violate Florida’s RICO Act, breach of fiduciary duty, negligent misrepresentation, fraudulent inducement, and common law fraud. Vidulich and Toscano filed motions to dismiss Visor’s third amended complaint, and the trial court dismissed the claims against Vidulich, Toscano, and Buhl with prejudice. This .appeal followed.
A motion to dismiss tests whether a plaintiff has alleged a good cause of action in his or her complaint. See Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987). An appellate court must accept the facts alleged in the complaint as true when reviewing a trial court’s order determining the sufficiency of the complaint. See Sarkis v. Pafford Oil Co., 697 So. 2d 524, 526 (Fla. 1st DCA 1997). All reasonable inferences must be drawn in favor of the pleader. See Higgs v. Florida Dep’t of Corrections, 647 So. 2d 962, 964 (Fla. 1st DCA 1994). A trial court’s determination on a motion to dismiss is reviewed de novo. See Brewer v. Clerk of the. Circuit Court, Gadsden County, 720 So. 2d 602, 603 (Fla. 1st DCA 1998).
Visor raises numerous issues on appeal and challenges the trial court’s dismissal of his complaint. We write only to address Visor’s fraud claims. Accepting the facts alleged in the complaint as true, Visor sufficiently stated a cause of action for negligent misrepresentation, fraudulent inducement, and common law fraud. In addition, there is a factual question as to whether the statute of limitations bars Visor’s fraud claims. See Williams v. Bear Stearns & Co., 725 So. 2d 397, 401 (Fla. 5th DCA 1998). Therefore, we reverse the dismissal of Visor’s negligent misrepresentation, fraudulent inducement, and common law fraud claims.
A review of the record indicates that Buhl did not file a motion to dismiss Visor’s complaint. Because Buhl failed to raise whether Visor stated a cause of ac tion against Mm, such grounds for dismissal are deemed waived. See Fla. R. Civ. P. 1.140(b). Thus, we reverse the dismissal of all of Visor’s claims against Buhl.
The remaining issues raised by Visor are without merit, and the dismissal of the RICO and breach of fiduciary duty claims against Vidulich and Toscano is affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
KLEIN, STEVENSON and HAZOURI, JJ., concur.
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Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001)…binding contract, the terms of which allowed it to dispose of the trade-in vehicle immediately upon the Plaintiffs tendering it. A court must accept the facts alleged in a complaint and exhibits attached to the complaint as true. See Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000); Abele v. Sawyer, 750 So. 2d 70 (Fla. 4th DCA 1999). A court may not go beyond the four corners of the complaint. See Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000). Asserting inconsistent allegat…
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Taylor v. City OF Riviera Beach, 801 So. 2d 259 (Fla. 4th DCA 2001)…the complaint and must accept the facts alleged therein and exhibits attached as true. Id. at 494; Barbado v. Green & Murphy, P.A., 758 So. 2d 1173 (Fla. 4th DCA 2000). All reasonable inferences must be drawn in favor of the pleader. Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000). “ ‘Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review.’ ” Samuels…
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Riverwalk AT Sunrise Homeowners Ass'n, Inc. v. Biscayne Painting Corp., 199 So. 3d 348 (Fla. 4th DCA 2016)…n-Williams responds that because the Association failed to bring suit within four years of its alleged failure to inspect and warn, the claim is now time-barred. We review a trial court’s determination on a motion to dismiss de novo. Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000). “A motion to dismiss tests whether a plaintiff has alleged a good cause of action in his or her complaint. An appellate court must accept the facts alleged in the complaint as true when reviewing” an order dismissing the co…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nader W. Sarkis and Nazih W. Sarkis v. Pafford OIL Co., Inc., 697 So. 2d 524 (Fla. 1st DCA 1997)
- Bertie M. Brewer v. Clerk OF the Cir. Court, 720 So. 2d 602 (Fla. 1st DCA 1998)
- Williams v. Bear Stearns & Co., 725 So. 2d 397 (Fla. 5th DCA 1998)
- Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987)
- Higgs v. Fla. Dep't OF Corr., 647 So. 2d 962 (Fla. 1st DCA 1994)