RAYMOND R. ELLIOTT, AND ELEANOR A. ELLIOTT, HIS WIFE, APPELLANTS,
v.
HERNANDO COUNTY AND AUTO-OWNERS INSURANCE COMPANY, APPELLEES
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The court reversed a dismissal of Elliott's complaint alleging that Hernando County's road construction diverted natural water flow onto their property, causing permanent damage. The court held that the complaint sufficiently stated a cause of action for damages and potentially a taking of property under the Florida Constitution, despite the deficiencies in pleading.
The court held that the amended complaint was sufficient under Florida's liberal pleading system to state a cause of action for damages. The allegations were sufficient to indicate that substantial property rights were taken to demonstrate a taking under Article 10, Section 6(a) of the Florida Constitution.
[1] A motion to dismiss a complaint admits all properly pleaded facts for the purpose of testing the complaint's legal sufficiency.
[2] A complaint is sufficient to state a cause of action if it alleges facts that, if proven, would entitle the plaintiff to relief under a liberal pleading system.
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Join FLexlaw to unlock all legal intelligence“In testing a complaint on a motion to dismiss, all facts properly pleaded therein are deemed admitted.”
Establishes the legal standard for evaluating motions to dismiss—all factual allegations must be accepted as true.
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Join FLexlaw to unlock all legal intelligenceBetween January 1970 and April 1970, Hernando County constructed and elevated a road adjacent to the Elliotts' property without installing adequate cu…
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Appellants seek review of an order dismissing with prejudice their amended complaint after they declined to plead further. The order does not set forth the basis upon which it was entered. However, appellees’ motion to dismiss is based on the grounds that the complaint failed to state a cause of action as a matter of law, and failed to state ultimate facts establishing a legally cognizable cause of action under law against appellees.
The amended complaint alleged, inter alia, that between January 1, 1970 and April 30, 1970, Hernando County constructed, built and elevated a road adjacent to appellants’ property and failed to place thereunder culverts or trestles sufficiently large enough to allow accumulating rain waters to be discharged in the direction of *396its natural flow. As a result of the artificial construction and diversion of the natural flow of the rain waters, appellants’ dwelling was greatly damaged, a portion washed away and destroyed, and their real property was flooded, submerged, destroyed, eroded, and washed away, rendering it unusable and in an unsanitary condition. The complaint further alleged that the real property was ruined to such an extent that it has amounted to a taking of appellants’ property for the public’s benefit.
At the time of the occurrences alleged in this action, the County’s sovereign immunity for liability for certain torts had been waived by general laws. See Chapter 69-116, Laws of Florida 1969 (former § 768.15 F.S.); Art. 10, § 13, Florida Constitution, 1968 Revision, F.S.A. Chapter 71-165, Laws of Florida, 1971 (F.S. § 768.151 F.S.A.) permitted revival of all causes of action arising during the operative period of Ch. 69-116, and extended the time for filing such actions to July 1, 1972. The instant action was filed on September 30 1971, and was therefore authorized. See State Dept. of Transportation v. Feltner, Fla.1972, 266 So.2d 670; Willits v. Askew, Fla.1973, 279 So.2d 1 [Op. filed May 23, 1973].
In testing a complaint on a motion to dismiss, all facts properly pleaded therein are deemed admitted. Pourtless v. Suwannee Hotel Company, Fla.App.1966, 184 So.2d 512; Feltner v. Fluder, Fla.App.1971, 252 So.2d 823. The question of the sufficiency of the evidence which the plaintiff will likely be able to produce at a hearing on the merits is irrelevant. Kest v. Nathanson, Fla.App.1968, 216 So.2d 233.
The amended complaint in the case sub judice is sufficient under our liberal system of pleading to state a cause of action for damages. Lawrence v. Eastern Air Lines, Fla.1955, 81 So.2d 632; Town of Miami Springs v. Lawrence, Fla.1958, 102 So.2d 143.
The complaint alleges that by reason of the artificial construction and diversion of the natural flow of rain waters appellants’ real property has been rendered unusable and in an unsanitary condition. Such flooding is permanent in the sense that rain is a condition that is reasonably expected to continually reoccur in the future. These allegations are sufficient to indicate that substantial property rights have been taken to demonstrate a taking under Art. 10, § 6(a), of the Florida Constitution, 1968 Revision. Kendry v. State Road Department, Fla.App.1968, 213 So.2d 23.
The order appealed is reversed and this cause remanded for further proceedings consistent herewith.
Reversed and remanded.
MANN, C. J., and BOARDMAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Dep't OF Transp. v. Burnette, 384 So. 2d 916 (Fla. 1st DCA 1980)…State Road Department, 213 So. 2d 23 (Fla. 4th DCA 1968), cert. denied 222 So. 2d 752 (Fla.1969); Thompson v. Nassau County, 343 So. 2d 965 (Fla. 1st DCA 1977); Pinellas County v. Austin, 323 So. 2d 6 (Fla. 2d DCA 1975); Elliott v. Hernando County, 281 So. 2d 395 (Fla. 2d DCA 1973); City of Jacksonville v. Shumann, 167 So. 2d 95 (Fla. 1st DCA 1964); State Road Department v. Darby, 109 So. 2d 591 (Fla. 1st DCA 1959). . This idea is not original. See, e. g. Kermetz v. Cook-Johnson Realty Corp., 54 Ohio App.2d…1 / 3
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Fearick v. The Smugglers Cove, Inc., 379 So. 2d 400 (Fla. 2d DCA 1980)…roperly pleaded are deemed admitted. On an appeal from a final judgment dismissing the complaint, it is irrelevant whether or not the appellant would have been able to present sufficient evidence to prevail on the merits. Elliott v. Hernando County, 281 So. 2d 395 (Fla. 2d DCA 1973); Connelly v. Merritt, 273 So. 2d 7 (Fla. 1st DCA 1973). Count I of appellant’s fourth amended complaint alleges facts which, if proven, will entitle him to his brokerage commission from Smugglers Cove, Inc. The parties had orally…
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Hillsborough Cnty. v. Onelia Gutierrez and Angel Gutierrez, 433 So. 2d 1337 (Fla. 2d DCA 1983)…in the future.” Here, the trial judge seemed to paraphrase from Kendry in the judgment when he stated that the flooding “is permanent in the sense that rain is a condition reasonably expected to continually reoccur.” Cf. Elliott v. Hernando County, 281 So. 2d 395 (Fla. 2d DCA 1973) (diversion of rain waters can cause permanent flooding condition because rain reoccurs in the future). Moreover, portions of the record indicate that the trial judge was attempting to determine whether the flooding occurred only w…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kest v. Nathanson, 216 So. 2d 233 (Fla. 4th DCA 1968)
- Kendry v. State Rd. Dep't of Fla., 213 So. 2d 23 (Fla. 4th DCA 1968)
- Town OF Miami Springs v. Franklyn Lawrence and Muriel Lawrence, 102 So. 2d 143 (Fla. 1958)
- Franklyn Lawrence and Muriel Lawrence v. E. AIR Lines, Inc., 81 So. 2d 632 (Fla. 1955)
- Feltner v. Fluder, 252 So. 2d 823 (Fla. 4th DCA 1971)
- Lucile A. Pourtless and Robert C. Pourtless v. Suwannee Hotel Co., 184 So. 2d 512 (Fla. 2d DCA 1966)
- Willits v. Honorable Reuben Askew, 279 So. 2d 1 (Fla. 1973)
- State v. Feltner, 266 So. 2d 670 (Fla. 1972)