WILLIAM MCK. SHONGUT, APPELLANT,
v.
ALVIN I. MALNIK, APPELLEE; ALVIN I. MALNIK, APPELLANT, V. WILLIAM MCK. SHONGUT, APPELLEE
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The court held that the trial court did not abuse its discretion in denying relief under Rule 1.38(b) and that the chancellor did not err in denying motions to dismiss, for summary decree, and to strike.
The appeals concern a post-final summary judgment order denying a motion for relief under Rule 1.38(b) and an order denying a motion to dismiss, motio…
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By these consolidated appeals, we are called upon to review a post-final summary judgment order denying a motion for relief pursuant to Rule 1.38(b), Florida Rules of Civil Procedure, 30 F.S.A., and an order of a chancellor denying a motion to dismiss, motion for summary decree and motion to strike. We affirm both orders.
It is apparent that the matters attempted to be brought to the attention of the trial judge in the common law action could have been available to the movant during the trial proceedings. Therefore, we find no abuse of discretion by the trial judge in denying relief under Rule 1.38(b), Florida Rules of Civil Procedure.
As to the action of the chancellor in denying the motion to dismiss and motion for summary decree, even though the chancery action involved the same matters which were before the trial judge in the Rule 1.38(b), Florida Rules of Civil Procedure proceedings, it is apparent from the provisions of the rule itself that this alone will not prevent the independent action.1 We likewise find no error in the denial of the motion to strike. It is to be remembered that in testing a complaint as amended [whether in chancery or at law] upon a motion to dismiss, the well-pleaded allegations therein contained are to be taken as true. See: Ideal Roofinig & Sheet Metal Works, Inc. v. Katzentine, Fla.App.1961, 127 So.2d 116; Lieberman v. City of Miami Beach, Fla.App.1962, 147 So.2d 16; Finneran v. City of Lake Worth, Fla.App.1963, 152 So.2d 501.
Therefore, for the reasons above stated, the orders here under review be and the same are hereby affirmed.
Affirmed.
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Finneran v. City OF Lake Worth, 152 So. 2d 501 (Fla. 2d DCA 1963)
- Ideal Roofing & Sheet Metal Works, Inc. v. Katzentine, 127 So. 2d 116 (Fla. 3d DCA 1961)
- Hyman Lieberman v. City OF Miami Beach, 147 So. 2d 16 (Fla. 3d DCA 1962)