JOHN LYTELL AND DORIS K. LYTELL, APPELLANTS,
v.
MCGAHEY CHRYSLER-PLYMOUTH, INC., A CORPORATION, APPELLEE
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The Lytells appealed dismissal of their complaint against McGahey Chrysler-Plymouth for fraud in the sale of an automobile and return of a deposit. The court held that while the fraud allegations were conclusory and properly dismissed, the amended complaint stated a valid cause of action for money had and received for the return of the deposit.
The amended complaint stated a valid cause of action for money had and received—specifically for the return of the deposit—even though the fraud allegations were conclusory and insufficient. A motion to dismiss for failure to state a cause of action should be denied if the complaint states a cause of action on any ground, and the court may strike the surplusage fraud allegations.
“If a complaint states a cause of action upon any ground, a motion to dismiss the complaint for failure to state a cause of action should be denied.”
Establishes the standard that a complaint need only state one valid cause of action to survive a motion to dismiss.
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Join FLexlaw to unlock all legal intelligenceThe Lytells purchased an automobile from McGahey Chrysler-Plymouth and deposited money toward the purchase. The sale was not completed. The plaintiffs…
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The trial judge dismissed plaintiffs’, appellants’, amended complaint upon the ground that it failed to state a cause of action. When the plaintiffs declined to further amend their amended complaint, the trial judge entered final judgment of dismissal, and the plaintiffs brought this appeal.
Plaintiffs’ original complaint sounded in tort for “false and fraudulent representations” by the defendant in the sale of an automobile to plaintiffs and claimed damages of $1500. The allegations of fraud were by way of conclusion; therefore, the original complaint was properly dismissed. Houchins v. Case, 138 Fla. 368, 189 So. 402 (1939); Ocala Loan Company *355v. Smith, Fla.App.1963, 155 So.2d 711; Rule 1.9(b), Florida Rules of Civil Procedure,1 30 F.S.A.
The allegations of fraud in the amended complaint did not meet the requirement of Rule 1.9(b), Florida Rules of Civil Procedure; however, the gravamen of the complaint was changed so that the claim was for the return of a sum deposited for the uncompleted purchase of the automobile. As such, the complaint stated a cause of action in the nature of general assumpsit for money had and received; that is, for the recovery of money which the appellee, in good conscience, should pay to the appellant. See Cullen v. Seaboard Air Line Railway Co., 63 Fla. 122, 58 So. 182 (1912); Cox v. Grose, 97 Fla. 848, 122 So. 513 (1929); Calhoun v. Corbisello, Fla.1958, 100 So.2d 171; and Goodwin v. Shire, Fla.App.1958, 105 So.2d 178. Even though the forms of action and technical forms for seeking relief have been abolished, Rule 1.8(a), Florida Rules of Civil Procedure, this does not mean that the form of the individual common counts, as they formerly existed, may not be used as a complaint, if the complaint thereby sets forth “a short and plain statement of the ultimate facts on which the pleader relies, and if it informs the defendant of the nature of the cause against him”. Moore v. Boyd, Fla. 1952, 62 So.2d 427; Rule 1.8(b), Florida Rules of Civil Procedure.
If a complaint states a cause of action upon any ground, a motion to dismiss the complaint for failure to state a cause of action should be denied. Regan v. Davis, Fla.App.1957, 97 So.2d 324. Inasmuch as we have found that the amended complaint was sufficient to state a cause of action for a return of the deposit, we hold that the allegations of fraud may be surplusage and that they may be stricken by the court upon its own motion or upon the motion of either party. Moore v. Boyd, Fla.1952, 62 So.2d 427; Rule 1.14(c), Florida Rules of Civil Procedure.
The final judgment dismissing the cause with prejudice is reversed, and the cause is remanded with directions to proceed in accordance with the views expressed herein.
Reversed.
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Vantage View, Inc. v. Bali E. Dev. Corp., 421 So. 2d 728 (Fla. 4th DCA 1982)…round, a motion to dismiss the complaint for failure to state a cause of action should be denied. * * ” Id. at 633 (emphasis original), citing Regan v. Davis, 97 So. 2d 324 (Fla. 2d DCA 1957), as quoted in Lytell v. McGahey Chrysler-Plymouth, Inc., 180 So. 2d 354, 355 (Fla. 3d DCA 1965). [*730] As to the count alleging breach of implied warranty, appellant claimed: 5.2 The Developers (BALI EAST, BANKERS TRUST and REALPROP), impliedly warranted to the Condominium’s unit owners that each Condominium parcel wa…
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Bond v. Koscot Interplanetary, Inc., 246 So. 2d 631 (Fla. 4th DCA 1971)…words, the court determines whether the plaintiff, if he later proves the allegations of his complaint, would thereby establish a cause of action against the defendant.” (Emphasis added.) In Lytell v. McGahey Chrysler-Plymouth, Inc., Fla.App.1965, 180 So. 2d 354, 355, citing Regan v. Davis, Fla.App.1957, 97 So. 2d 324, it has been held that: “If a complaint states a cause of action upon any ground, a motion to dismiss the complaint for failure to state a cause of action should be denied. * * ” (Emphasis ad…
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Padgett v. First Fed. Sav. & Loan Ass'n OF Lake Worth, 297 So. 2d 101 (Fla. 4th DCA 1974)…since it did state a cause of action for some relief, the motion to dismiss should have been denied. Regan v. Davis, Fla.App.1957, 97 So. 2d 324; Rudman v. Baine, Fla.App.1961, 133 So. 2d 760; Lytell v. McGahey Chrysler-Plymouth, Inc., Fla.App.1965, 180 So. 2d 354. See Wilensky v. Fields, supra. Appellee’s motion to dismiss Count I also contended that appellee was exempt from the usury statutes by virtue of F.S. § 665.-395, F.S.A. Said section provides: “No fines, interest or premiums paid on loans made by a…
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
- Cox v. Grose, 97 Fla. 848 (Fla. 1929)
- Ocala Loan Co. v. Smith, 155 So. 2d 711 (Fla. 1st DCA 1963)
- Cullen v. Seaboard Air Line R.R. Co., 63 Fla. 122 (Fla. 1912)
- Moore v. Boyd, 62 So. 2d 427 (Fla. 1952)
- Regan v. Davis, 97 So. 2d 324 (Fla. 2d DCA 1957)
- Calhoun v. Corbisello, 100 So. 2d 171 (Fla. 1958)
- Houchins v. Case, 138 Fla. 368 (Fla. 1939)
- Goodwin v. Shire, 105 So. 2d 178 (Fla. 3d DCA 1958)