EARLE JOHNSON, APPELLANT,
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, A CORPORATION DOING BUSINESS IN THE STATE OF FLORIDA, HARRY LYNN AND EARLE JOHNSON PLUMBING, INC., A FLORIDA CORPORATION, APPELLEES
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Johnson appealed the dismissal of his complaint against Southern Bell Telephone and Telegraph Company and others, alleging the telephone company wrongfully refused to transfer his personal telephone number and listing to his new business after he severed ties with his former corporation. The court held that the complaint stated a sufficient cause of action and reversed the dismissal as premature.
The complaint states a sufficient cause of action and must proceed to trial rather than be dismissed at the pleading stage. The court reversed the dismissal, holding that under Florida law a complaint need only state facts sufficient to indicate that a cause of action exists and need not anticipate affirmative defenses.
“it is only necessary for the complaint to state facts sufficient to indicate that a cause of action exists and not to anticipate affirmative defenses”
Establishes the standard for evaluating complaints at the pleading stage—facts must suggest a cause of action exists, but need not disprove potential defenses.
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Join FLexlaw to unlock all legal intelligenceJohnson had a personal contract with Southern Bell for telephone service including a listing and classified directory advertisement under his personal…
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The appellant, plaintiff below, appeals an order dismissing with prejudice his amended complaint at law in which he purported to state a cause of action against the Southern Bell Telephone and Telegraph Company, Plarry Lynn and Earle Johnson Plumbing, Inc., a corporation.
In his complaint, appellant alleges that he had a personal contract with the telephone Company whereby this Company furnished to him a telephone number and listings in the alphabetical and classified directories. He further alleges the use of these services, including an advertisement in the classified directory, for a period of years, during a part of which time he was associated with the defendant corporation, Earle Johnson Plumbing, Inc., but that during all of said time the listing of the phone was his personal affair. It is alleged that, there*37after he severed his relations with Earle Johnson Plumbing, Inc., and demanded the transfer to his new business the existing number or that the Telephone Company discontinue the services as listed. The complaint also alleged that the Telephone Company acted, in conjunction with and under the provocation of the other defendants, wil-fully and maliciously in refusing to effect either the transfer or the discontinuance of the service. The complaint sets out that a part of the service furnished to him was an advertisement which carried his personal name and not that of the corporation, and pursuant to the refusal of the Telephone Company, he now is in a position of having his personal name listed and an advertisement published which directs business calls to his former associates and his present competitors. The complaint concludes with a claim for damages against the defendants.
The appellant contends that he had a property right in his telephone number. See Clayton Home Equipment Co. v. Florida Tel. Corp, Fla.App.1963, 152 So.2d 203. It is urged that all of the defendants should answer to him in damages for the alleged “conspiracy.” It is apparent from the defensive matter urged by the appellees that the plaintiff may have some difficulty in establishing a cause of action. Nevertheless, the question of whether the Telephone Company was justified in continuing the listing and advertisement for the benefit of the plaintiff's former corporation, is one that must be determined from the facts. It is established that under the law of this State, it is only necessary for the complaint to state facts sufficient to indicate that a cause of action exists and not to anticipate affirmative defenses. Livingston v. American Title & Ins. Co., Fla.App.1961, 133 So. 2d 483. In the instant case the plaintiff, appellant, has given the factual basis of his claim and it is apparent that if all of his allegations are taken as true, he has presented a situation which calls for a remedy. It is possible, as suggested by the appellees, this remedy may be in equity. If they conceive this to be their defense to this cause, they should move under Fla.R.Civ.P. 1.39, 30 F.S.A. for a transfer of the action to the chancery side.
We hold therefore, that the complaint as framed states a cause of action and the court acted prematurely in dismissing the complaint with prejudice.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pizzi v. Cent. Bank & Tr. Co., 250 So. 2d 895 (Fla. 1971)…hile the bank may have affirmative defenses which will absolve it of all liability, either in summary judgment proceedings or at trial, these may not be considered at this time. Johnson v. Southern Bell Telephone and Telegraph Company, Fla.App.1964, 169 So. 2d 36. The court “must confine itself strictly to the allegations within the four corners of the complaint.” Kest v. Nathanson, Fla.App.1968, 216 So. 2d 233, 235. It appears that the lower courts in the instant case did not adhere to this rule. We note f…
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Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla. 1973)…eekman v. Sonntag Investment Co., 67 Fla. 293, 64 So. 948 (1914); Triplett et al. v. Brevard Properties, Inc., 94 Fla. 869, 115 So. 534 (1927); Sperling et al. v. Davie, 41 So. 2d 318 (Fla.1949); Johnson v. Southern Bell Telephone and Telegraph Co., 169 So. 2d 36 (Fla.App.1964); South Florida Citrus Land Co. v. Waldin, 61 Fla. 766, 55 So. 862 (1911); and Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla.1956). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution F.S.A. (as amended 197…
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Raney v. Jimmie Diesel Corp., 362 So. 2d 997 (Fla. 3d DCA 1978)…pt all well pleaded allegations contained in the complaint as .true. See, e. g., Pizzie v. Central Bank and Trust Co., 250 So. 2d 895 (Fla.1971); Connolly v. Sebeco, 89 So. 2d 482 (Fla.1956); and Johnson v. Southern Bell Telephone and Telegraph Co., 169 So. 2d 36 (Fla. 3d DCA 1964). The elements of a cause of action for breach of contract are set forth, e. g., in Cook v. Underwriters National Assurance Co., 221 So. 2d 18 (Fla. 3d DCA 1969); the elements for a cause of action for negligence are set forth, e.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Livingston v. Am. Title & Ins. Co., 133 So. 2d 483 (Fla. 1st DCA 1961)
- Clayton Home Equip. Co., Inc. v. Fla. Tel. Corp., 152 So. 2d 203 (Fla. 1st DCA 1963)