EUGENE S. V. CHERRY AND KATHERINE M. CHERRY, HIS WIFE, APPELLANTS,
v.
JAMES R. PIRRELLO ET AL., APPELLEES
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In this declaratory judgment action, the appellate court reversed the trial court's dismissal of a complaint seeking a declaration of ownership of a strip of land and alleging conversion of soil. The court held that the complaint stated a cause of action and that any factual determinations should have been made via summary judgment rather than through a motion to dismiss.
The court held that the order dismissing the complaint was error. The complaint was not insufficient as a matter of law, and if the trial court's decision rested on factual grounds, it should have been entered as a summary judgment rather than as a dismissal for failure to state a cause of action. There was also no basis for dismissing the conversion count.
[1] A complaint seeking a declaration of ownership and alleging a dispute over land ownership states a cause of action.
[2] A claim for conversion of soil piled upon disputed property may state a cause of action, even if the monetary value is below the circuit court's jurisdictional limit.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the complaint was not insufficient as a matter of law and that if the court's decision was upon a factual basis, it should have been entered as a summary judgment”
Establishes the key distinction that factual determinations require summary judgment procedure, not motion to dismiss
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Join FLexlaw to unlock all legal intelligencePlaintiff Eugene S. Cherry sought a declaration as to ownership of a disputed strip of land in his second amended complaint. He also alleged conversio…
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PEARSON, Judge.
The plaintiff, in his second amended complaint sought a declaration as to the ownership of a strip of land. He alleged that, as to the question of ownership, a dispute existed between himself and the defendant. A second count clairqed conversion of soil piled by plaintiff upon the disputed property. The complaint was dismissed upon the motion of the defendant. The basis for the trial judge’s decision that the complaint did not state a cause of action does not appear in the record. Appel-lee urges that the court determined that plaintiff’s claim of adverse possession was insufficient as a matter of law because defendant did not know that plaintiff was occupying his land. At the time of oral argument, it appeared that the trial court knew the factual basis of plaintiff’s claim because of hearings upon an application for injunction.
However, it also appears that the complaint was not insufficient as a matter of law and that if the court’s decision was upon a factual basis, it should have been entered as a summary judgment. In addition, there is no basis for the dismissal of the count for conversion of soil although it may be that this claim does not reach the jurisdictional limit of the circuit court.
We hold, therefore, that the order dismissing the complaint was error. See Rosenhouse v. 1950 Spring Term Grand Jury, Fla.1952, 56 So. 2d 445; Johnson v. Thoburn, Fla.App.1964, 160 So. 2d 729; Tulip Realty Co. of Florida v. Fuhrer, Fla.App. 1963, 155 So. 2d 637. See also Millers Mutual Fire Insurance Company of Texas v. American Fidelity Fire Insurance Company, Fla.App. 1965, 178 So. 2d 742. The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
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Citator
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Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994)…tions, affidavits, or other proofs.”) Although the trial court may ultimately be correct, it was inappropriate to make such a legal conclusion on a motion to dismiss. DeWitt v. Zimmerman, 366 So. 2d 46 (Fla. 4th DCA 1978). Accord Cherry v. Pirrello, 324 So. 2d 158 (Fla. 3d DCA 1972). We have not overlooked Anheuser’s arguments that we should treat its motion to dismiss as a mislabeled motion for summary judgment or that Holland acquiesced in the procedure used by the trial court and thus is precluded from cl…
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Brown v. State, 701 So. 2d 1211 (Fla. 1st DCA 1997)…n amend their complaint to allege a legal cause of action, any inquiry into the sufficiency of the evidence to support the allegations of waiver and estoppel should be by motion for summary judgment rather than motion to dismiss. Cherry v. Pirrello, 324 So. 2d 158, 159 (Fla. 3d DCA 1975); see also Hamide v. State Dep’t of Corrections, 548 So. 2d 877 (Fla. 1st DCA 1989)(reversing the trial court’s order granting the motion to dismiss filed by the Department and allowing Ham-ide to amend his complaint). REVERS…
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Simonin v. Sims, 456 So. 2d 499 (Fla. 4th DCA 1984)…matters outside the four corners of the complaint and erroneously ruled upon the merits of the cause on the motion to dismiss. See Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3d DCA 1981); Cherry v. Pirrello, 324 So. 2d 158 (Fla. 3d DCA 1975); Tiseo v. Arnold, 237 So. 2d 21 (Fla. 2d DCA 1970); Crutchfield v. Adams, 152 So. 2d 808 (Fla. 1st DCA 1963). While dismissal of the complaint may have been appropriate for failure to state a cause of action due to certain unsupp…
Authorities Cited
- Johnson v. Thoburn, 160 So. 2d 729 (Fla. 3d DCA 1964)
- Millers Mut. Fire Ins. Co. OF Tex. v. Am. Fid. Fire Ins. Co., 178 So. 2d 742 (Fla. 3d DCA 1965)
- Tulip Realty Co. OF Fla., Inc. v. Fuhrer, 155 So. 2d 637 (Fla. 2d DCA 1963)