GREATER MIAMI TELEPHONE ANSWERING SERVICE, A FLORIDA CORPORATION, APPELLANT,
v.
A-1 ANSWERING SERVICE, A FLORIDA CORPORATION, APPELLEE
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Greater Miami Telephone Answering Service, the seller of a telephone answering service, appealed a judgment on the pleadings granted in favor of the purchaser A-1 Answering Service. The dispute concerned whether the purchaser had fully paid the purchase price when a portion was deposited with an escrow agent who subsequently embezzled the funds.
The court reversed the judgment on the pleadings, holding that it did not appear from the complaint that the escrow agent was the agent of the seller, and therefore the complaint stated a cause of action. Additionally, the original agreement governing the escrow arrangement was not attached as an exhibit, which required reversal since the escrow agreement is the primary consideration on the issue of agency.
“In a motion for judgment on the pleadings, the moving party admits for the purpose of the motion the facts well-pleaded by his adversary despite their denial in the movant's pleadings; and the movant also admits the untruth of his own allegations which have been denied by his adversary.”
Establishes the legal standard for reviewing a motion for judgment on the pleadings—all well-pleaded facts of the non-moving party must be accepted as true.
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Join FLexlaw to unlock all legal intelligenceGreater Miami Telephone Answering Service sold a telephone answering service to A-1 Answering Service. At delivery of possession, a portion of the pur…
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The appellant, who was seller of a telephone answering service, appeals from a final judgment entered upon the pleadings. The appellee was the purchaser. The complaint brought by the appellant was for the balance claimed to be due on the purchase price. It appears from the complaint and exhibits that at the time of the delivery of possession of the property, a portion of the purchase price was paid to an escrow agent who subsequently embezzled the money to be used for the last payment to appellant. The appellee-purchaser admitted the payment into the hands of the escrow agent and claimed that he had thus paid in full to the agent of appellant. He thereupon moved, pursuant to Rule 1.11(c), Florida Rules of Civil Procedure, 30 F.S.A., for a judgment on the pleadings. The judgment was entered and is now appealed.
*620In a motion for judgment on the pleadings, the moving party admits for the purpose of the motion the facts well-pleaded by his adversary despite their denial in the movant’s pleadings; and the movant also admits the untruth of his own allegations which have been denied by his adversary. Falick v. Sun N Sea, Inc., Fla.1955, 81 So.2d 749; Reinhard v. Bliss, Fla.1956, 85 So.2d 131. While the facts pleaded by defendant may have been sufficient in law to constitute a defense, these facts are deemed denied (and thus admitted as being false for purposes of the motion) since averments in a pleading to which no responsive pleading is required are taken as denied. Rule 1.8(e), 1954 Florida Rules of Civil Procedure.
Here, the issue turns on whether the escrow agent was the agent of the plaintiff-buyer or defendant-seller. Under the rule of the Falick and Reinhard cases, it does not appear from the complaint that the escrow agent was the agent of the plaintiff-seller, and thus it cannot be said as a matter of law that the complaint does not state a cause of action. We are, therefore, required to reverse this judgment. Falick v. Sun N Sea, Inc., supra, Reinhard v. Bliss, supra.
It is to be noted that the escrow receipt which was approved by both parties sets forth that the funds were held “ * * * in accordance with the terms and conditions of the original agreement between the parties.” This original agreement was not made an exhibit. This itself would have required reversal since the escrow agreement is the primary consideration on the issue of agency, Cradock v. Cooper, Fla.App.1960, 123 So.2d 256, and in a motion for judgment on the pleadings the court may not go outside of the pleadings to determine the case, Castner v. Ziemer, Fla.App.1959, 113 So.2d 263.
For the reasons above, the judgment on the pleadings is reversed and the cause remanded for further proceedings.
Reversed and remanded.
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Butts v. State Farm Mut. Auto. Ins. Co. & Reserve Ins. Co., 207 So. 2d 73 (Fla. 3d DCA 1968)…taken as false. Since the answer requires no responsive pleading, all allegations contained therein are deemed denied. Miller v. Eatmon, Fla.App.1965, 177 So. 2d 523; Greater Miami Telephone Answering Service v. A-1 Answering Service, Fla.App. 1962, 141 So. 2d 619; Storer v. Florida Sportservice, Inc., supra; Paradise Pools, Inc. v. Genauer, Fla.App.1958, 104 So. 2d 860. The test to be applied in this instance is the same as if defendant were to have moved to dismiss the complaint for failure to state a cause…
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Porter W. Homer v. Conn. Gen. Life Ins. Co., 211 So. 2d 250 (Fla. 3d DCA 1968)…, Fla.App.1967, 196 So. 2d 453; Miller v. Eatmon, Fla.App. 1965, 177 So. 2d 523. . Adams Engineering Oo. v. Construction Products Corp., Fla.App.1963, 158 So. 2d 559; Greater Miami Telephone Answering Service v. A-1 Answering Service, Fla.App.1962, 141 So. 2d 619. . McNayr v. State ex rel. Dupont Plaza Center, Inc., Fla.1964, 166 So. 2d 142. . Section 193.29, Fla.Stat., F.S.A. . Section 193.25, Fla.Stat., F.S.A. . Section 193.29(3), Fla.Stat., F.S.A., directs the county assessor to calculate the total am…
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Bergeron Land Dev., Inc. v. Knight, 307 So. 2d 240 (Fla. 4th DCA 1975)…moves for a judgment on the pleadings, the court (for the purpose of the motion) must accept as true all well-pleaded allegations (affirmative and negative) of the nonmoving party. Greater Miami Tel. Answer. Serv. v. A-1 Answer. Serv., Fla.App.1962, 141 So. 2d 619; Kendall Flying School, Inc., v. Robertson, Fla.App.1969, 225 So. 2d 344. The second rule is that “the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reinhard v. Bliss, 85 So. 2d 131 (Fla. 1956)
- Castner v. Ziemer, 113 So. 2d 263 (Fla. 2d DCA 1959)
- Falick v. SUN N SEA, Inc., 81 So. 2d 749 (Fla. 1955)
- Cradock v. Cooper, 123 So. 2d 256 (Fla. 2d DCA 1960)