LINDA CHANDLER BOYE, NEE LINDA CHANDLER, APPELLANT,
v.
JODEAN P. CASH, AS EXECUTOR OF THE ESTATE OF LUTHER LEONIDAS CHANDLER, SR., A/K/A LUTHER CHANDLER, A/K/A L. L. CHANDLER, A/K/A LUTHER L. CHANDLER, DECEASED, BILLYE T. CHANDLER, LUTHER L. CHANDLER, JR., FLORA C. WALKER, AND GRACE M. WARDEN, APPELLEES
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In this interlocutory appeal, the Third District Court of Appeal reversed a trial court's order sustaining objections to discovery interrogatories, holding that once a complaint is sustained against a motion to dismiss, the plaintiff must be afforded adequate discovery proceedings to establish the allegations pleaded.
The court held that once a trial court sustains a complaint against a motion to dismiss, the plaintiff must be given an opportunity through discovery proceedings to establish the allegations of the complaint. Sustaining the complaint while refusing to permit related discovery proceedings is contrary to modern procedure.
“To sustain the complaint and then refuse to permit discovery proceedings consonant therewith, would be in derogation of the modern theory of procedure.”
Establishes the core holding that discovery must be available after a complaint is sustained
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Join FLexlaw to unlock all legal intelligenceLuther Chandler, Sr. died leaving an estate valued at approximately $1,200,000, of which approximately $830,000 passed outside his will. Prior to divo…
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This is an interlocutory appeal by the plaintiff from an order sustaining the defendant’s objections to interrogatories propounded by the plaintiff. Appellant is the daughter of Luther Chandler, Sr. by a previous marriage, appellee is his widow. Mr. Chandler died leaving property valued at .approximately $1,200,000 of which approximately $830,000 passed outside of the will. The deceased, prior to dissolving his marriage to appellant’s mother, agreed to make a will leaving one-third of his estate to appellant, and to maintain a life insurance policy with a face value of $10,000 payable to appellant.
Appellant instituted this suit seeking; ■specific performance of the deceased’s contract to make a will; declaration of trust as to that property which passed outside of the will; payment of $10,000 for failure to maintain the life insurance policy and a decree declaring appellant’s rights.
Appellee moved to dismiss the ■complaint for failure to state a cause of .action upon which relief could be granted. The trial court denied this motion, thus sustaining the complaint as sufficiently pleading facts upon which relief could be granted. 'The question of the sufficiency of the complaint is not presently before this court and can not be considered by us at this time,1 Once having sustained the complaint, the complainant must be given an opportunity, by means of discovery proceedings, to establish the allegations of her complaint. To sustain the complaint and then refuse to permit discovery proceedings consonant therewith, would be in derogation of the modern theory of procedure.2
The trial court having determined that the existence of assets which passed outside of the will of the deceased might entitle appellant to relief, should have permitted appellant to make inquiry in relation thereto.
Accordingly, the order sustaining appel-lee’s objections is reversed and the cause remanded to the trial court in order to determine which of the appellant’s interrogatories are related to the allegations of the complaint.
Reversed and remanded with directions.
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Citator
Cited By
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Boye v. Jodean P. Cash, 169 So. 2d 848 (Fla. 3d DCA 1964)…nst the appellee, Billye T. Chandler, and it appearing that she had elected to take against the will, no error has been demonstrated in the chancellor’s ruling here under review, and same is hereby affirmed. Affirmed. . Boye v. Cash, Fla.App.1964, 160 So. 2d 534.…
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