JOSEPH WAGMAN AND MILDRED WAGMAN, HIS WIFE, APPELLANTS,
v.
MAURICE LEFCOE AND EDYTHE LEFCOE, HIS WIFE, APPELLEES
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The Florida District Court of Appeal affirmed a lower court's dismissal of a lessee's claim for a security deposit, finding the action premature under the lease agreement. However, the appellate court modified the dismissal to be without prejudice.
Yes, the lessee's action was premature. However, the dismissal should have been without prejudice.
“The trial judge ruled the action was premature under express provisions of the written lease, and we agree.”
This quote establishes the court's agreement with the lower court's finding of prematurity.
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Join FLexlaw to unlock all legal intelligenceA lessee sued to recover a security deposit after being ousted for default under a written lease. The trial court dismissed the lessee's amended compl…
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This appeal is from an order entered on a motion to dismiss, which dismissed with prejudice one of two counts of the amended complaint. Thereafter, the plaintiff dismissed the second count. Following argument here, we dismissed the appeal. On rehearing, the appeal was reinstated and is now determined on the merits.
The action in the trial court was one brought by a lessee, after ouster for default, to recover a security deposit. The trial judge ruled the action was premature under express provisions of the written lease, and we agree. See also Kanter v. Safran, Fla.1953, 68 So.2d 553, 558; Id., Fla.1958, 99 So.2d 706; Hyman v. Cohen, Fla.1954, 73 So.2d 393; Stenor, Inc. v. Lester, Fla.1951, 58 So.2d 673. However, the dismissal should not have been with prejudice, and the order appealed from is hereby modified to be without prejudice, and, as so modified, is affirmed.
Modified and affirmed.
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Stager v. Fla. E. Coast Ry. Co., 163 So. 2d 15 (Fla. 3d DCA 1964)…ourt to determine whether the refusal to permit the additional witnesses constituted error. See: Green v. Hood, Fla.App.1960, 120 So. 2d 223; Musachia v. Terry, Fla.App.1962, 140 So. 2d 605; Seaboard Air Line Railroad Company v. Ellis, Fla.App.1962, 143 So. 2d 550. As to the court-appointed physician, this cause was before the trial court on two occasions. The first trial resulted in a mistrial. Prior to the first trial, the judge announced his two-witness limitation as to medical evidence. Also prior to the…
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McD. v. State, 422 So. 2d 336 (Fla. 3d DCA 1982)…nd no error. It is axiomatic that failure to proffer what the excluded evidence would have revealed precludes appellate consideration of the alleged error. Cason v. Smith, 365 So. 2d 1042 (Fla. 3d DCA 1978); Seaboard Air Line Railroad Co. v. Ellis, 143 So. 2d 550 (Fla. 3d DCA 1962). The Florida Evidence Code, Section 90.104, Florida Statutes (1979) provides: (1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial…
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Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kanter et ux. v. Safran, 68 So. 2d 553 (Fla. 1953)
- Hyman v. Cohen, 73 So. 2d 393 (Fla. 1954)
- Stenor, Inc. v. Lester, 58 So.2d 673 (Fla. 1951)
- Maounis v. Igor Shamis (Fla. 3d DCA 2023)
- Kanter v. Safran, 99 So. 2d 706 (Fla. 1958)