PORT CARLOS TRAILER PARK, INC., APPELLANT,
v.
WARREN BROTHERS COMPANY, APPELLEE
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Port Carlos Trailer Park appeals the denial of a motion to dismiss in a contract dispute with Warren Brothers Company over alleged improvements to its land. The court affirms, holding that an appellate court is not the proper forum to refine pleadings and that the complaint states a viable claim for money damages even if an equitable lien theory may be questionable.
The court affirms the denial of the motion to dismiss, holding that because the complaint discloses a basis on which the plaintiff may recover (breach of contract for money damages), the motion should be denied regardless of whether an equitable lien theory is ultimately viable. An appellate court should not attempt to refine pleadings or reach substantive questions not squarely presented.
[1] An appellate court is not the proper forum for the refinement of pleadings.
[2] A motion to dismiss should be denied if the complaint alleges any basis upon which the plaintiff may recover, even if the plaintiff also seeks to establish a claim for wh…
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Join FLexlaw to unlock all legal intelligence“We determine that an appellate court is not the place for the refinement of pleadings.”
Establishes the core principle that appellate courts should not attempt to refine or improve pleadings; that is the trial court's role.
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Join FLexlaw to unlock all legal intelligenceWarren Brothers Company contracted to perform improvements on Port Carlos Trailer Park's land but failed to perfect its statutory lien under Florida S…
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We consider the role of trial and appellate courts in the perfection of pleadings. We determine that an appellate court is not the place for the refinement of pleadings.
Appellee Warren Brothers Company contracted to perform certain improvements on the land of appellant Port Carlos Trailer Park, Inc. It did not perfect its statutory lien under Florida Statutes Chapter 713 (1969), F.S.A. In this action it alleges that Port Carlos Trailer Park has “failed and refused and is unable” to pay what is due, and contends that it has an equitable lien. We decline to determine this question.
We concede that F.A.R. 4.2, 32 F.S.A. still improvidently allows appeals as a matter or right from interlocutory orders in matters formerly cognizable in equity. If the question were squarely presented we would have to answer it. But it is not squarely presented.
Here is the course of pleading in the circuit court: The complaint was filed, and a *166motion to dismiss was addressed thereto-, claiming failure to state a cause of action. This motion was denied. No appeal was taken. A second motion to dismiss was filed, together with a motion for judgment on the pleadings. The motion to dismiss was denied on authority of RCP Rule 1.140 (g), 30 F.S.A.,1 although Rule 1.140(h) poses a problem. That rule provides :
“(h) Waiver of Defenses. A party waives all defenses and objections which he does not present either by motion as herein provided or, if he has made no motion, in his answer or reply except (1) that the defense of failure to state a cause of action, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits and (2) that when it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. * * ”• (Emphasis added.)
We think “also” provides an additional, not an alternative, opportunity to raise the sufficiency of the complaint.
But if the complaint discloses any basis on which the plaintiff may recover the motion to dismiss should be denied.2 This complaint clearly alleges a contract and an unpaid balance. The dispute is whether there is also a basis for an equitable lien. This question is dealt with in many Florida cases 3 and the trial judge is exceptionally able to deal with it. Even if there is not any basis in this or an amended complaint for an equitable lien, the action may continue as one for money damages. Accordingly, without reaching the question appellant wants answered, the order is
Affirmed.
HOBSON, C. J., and McNULTY, J., concur.
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Cooper v. IBI Sec. Serv. OF Fla., Inc., 281 So. 2d 524 (Fla. 3d DCA 1973)…on as to the amount of damages recoverable therefor. Where a complaint states facts upon which relief can be granted, it is not vulnerable to a motion to dismiss for insufficiency. Port Carlos Trailer Park, Inc. v. Warren Brothers Co., Fla.App.1970, 240 So. 2d 165, 166.…
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Luther Walker Trucking Co., Inc. v. Fernandez, 285 So. 2d 667 (Fla. 2d DCA 1973)…ge. The trial court correctly determined that Walker Trucking had not perfected a statutory Mechanic’s Lien. However, the action should have continued as one for money damages under the contract. See Port Carlos Trailer Park v. Warren Brothers Co., 240 So. 2d 165 (2nd DCA Fla.1970). See also Fla.Const. Art. V, § 2(a), F.S.A. Reversed and remanded with directions to enter a partial final summary judgment. BOARDMAN, J., and COWART, JOE A., Jr., Associate Judge, concur.…
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Hedden v. W. L. Cobb Constr. Co., 253 So. 2d 258 (Fla. 2d DCA 1971)…MANN, Judge. This case, like Port Carlos Trailer Park, Inc. v. Warren Brothers Co., Fla.App.1970, 240 So. 2d 165, involves an effort to terminate an improvidently brought action to impress an equitable lien. Here the motion was for judgment on the pleadings, in Port Carlos, to dismiss. In both it is obvious that the same cause should continue, after appropriat…
Authorities Cited
- Crane Co. v. Fine, 221 So. 2d 145 (Fla. 1969)