GARY D. HOCHMAN AND ELYSE S. HOCHMAN, APPELLANTS,
v.
LAZARUS HOMES CORPORATION, A FLORIDA CORPORATION, APPELLEE
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The Hochmans purchased a home from Lazarus Homes Corporation under a deposit receipt agreement that allegedly contained a discrepancy in mortgage interest rates (7.5% promised vs. 8.5% actual). The trial court dismissed their amended complaint for damages, but the appellate court reversed, holding that the complaint stated a valid cause of action and that a motion to dismiss was improper for challenging damages allegations.
The court held that the amended complaint stated a sufficient cause of action and that the motion to dismiss was improperly granted. The court reasoned that all material allegations must be taken as true on a motion to dismiss, the allegations here established a valid claim, the express reservation of the right to damages negated any waiver defense, and motions to dismiss are not proper for attacking the sufficiency of damages allegations alone.
[1] On a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true and reviewed in light of the applic…
[2] A complaint alleging that a party expressly reserved the right to file an action for damages effectively negates a claim of waiver.
Previewing 2 of 5 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“upon a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true. Those allegations are then reviewed in light of the applicable substantive law to determine the existence of a cause of action.”
Establishes the governing standard of review for motions to dismiss and requires accepting factual allegations as true
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Join FLexlaw to unlock all legal intelligenceIn June 1973, the Hochmans entered into a deposit receipt agreement to purchase a single-family residence from Lazarus Homes for $51,778.00. The agree…
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PIERCE, WILLIAM G, Associate Judge.
This is an appeal by Gary D. Hochman and Elyse S. Hochman, plaintiffs in the trial court, from a final judgment dismissing with prejudice an amended complaint for damages.
The amended complaint alleges that in June of 1973, the Hochmans entered into a deposit receipt agreement with the defendant, Lazarus Homes Corporation, whereby Larazus Homes was to sell a single family residence to the Hochmans for the sum of $51,778.00. The agreement provided that the Hochmans would assume a mortgage of $40,642.40 placed by Lazarus Homes, bearing interest at 7.5 per cent per annum. Lazarus Homes obtained a mortgage on the property in the principal sum of $40,600.00, but at an interest rate of 8.5 per cent per annum. The complaint further alleges that the transaction was closed with the specific understanding that the Hochmans reserved the right to file an action for damages resulting from the difference in interest rates. The damages sought in the amended complaint are the additional interest payments and the diminished value of the property.
Lazarus Homes Corporation filed a motion to dismiss stating as some of the grounds that the amended complaint fails to state a cause of action; that the elements of damage were improper, and that the contract was accepted and the transaction was consummated and, therefore, the plaintiffs have waived their rights to rescind the contract. The motion was granted and the trial court entered its order dismissing the amended complaint with prejudice and final judgment in favor of the defendant. The order contains no grounds or reasons for dismissal.
On appeal, the Hochmans contend that the trial court erred in dismissing the amended complaint and in entering final judgment for the defendant.
We agree. The rule is well established that, upon a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true. Those allegations are then reviewed in light of the applicable substantive law to determine the existence of a cause of action. Peeler v. Independent Life and Accident Insurance Co., Fla.App. 1967, 206 So. 2d 34, 36. Based upon the foregoing, taking the allegations of the amended complaint as true, we find it to be sufficient. Cf. Lungu v. Walters, Fla.App. 1967, 198 So. 2d 99.
The facts alleged in the complaint and supported by the agreement, a copy of which is attached to the complaint, state a cause of action. As to the ground of waiver raised in the motion to dismiss, we note the allegation in the amended complaint that the right to damages had been expressly reserved. Waiver is defined as an intentional relinquishment of a right. 12 Fla.Jur., Estoppel and Waiver, § 7.
Therefore, that allegation, taken as true on the motion to dismiss, effectively negates a waiver. The defendant also raised damages as a ground for its motion. A motion to dismiss is not a proper method of attacking a complaint that is insufficient only in that the elements of damage are improper or insufficiently alleged. Arcade Steam Laundry v. Bass, Fla.App.1964, 159 So. 2d 915, 916. If the complaint states a claim upon which at least nominal damages may be awarded, then a motion to dismiss such a complaint should not be granted. Augustine v. Southern Bell Telephone & Telegraph Company, Fla.1956, 91 So. 2d 320, 323.
Therefore, the defendant’s grounds being insufficient to sustain a motion to dismiss, the order of dismissal with prejudice and entering final judgment is reversed and the trial court is directed to proceed with the cause accordingly.
Reversed with directions.
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Jackson v. Biscayne Med. Ctr., Inc., 347 So. 2d 721 (Fla. 3d DCA 1977)…e counts that may proceed must then be tested to determine whether or not, taking all material allegations as true and viewing them in light of the applicable substantive law, any count states a cause of action. Hochman v. Lazarus Homes Corporation, 324 So. 2d 205 (Fla. 3d DCA 1975). As for counts I and II, couched in terms of negligence and negligent training of hospital employees, respectively, we are of the opinion that the complained of acts giving rise to those counts are within the purview of Section 7…
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Baiton v. Carnival Cruise Lines, Inc., 661 So. 2d 313 (Fla. 3d DCA 1995)…e of action. We reverse. I. For purposes of considering the defendant Carnival Cruise Lines, Inc.’s motion to dismiss, the plaintiffs allegations in his second amended complaint must be accepted as [*314] true.1 See Hochman v. Lazarus Homes Corp., 324 So. 2d 205 (Fla. 3d DCA 1975). Plaintiff was a seaman employed by Carnival. A fellow seaman, Rufino Medina, filed a lawsuit against Carnival under the Jones Act. Baiton agreed to testify as a witness for Medina in that ease. Baiton alleges that Carnival attem…
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TER Keurst v. Miami Elevator Co. & Centaur Ins. Co., 453 So. 2d 501 (Fla. 3d DCA 1984)…tain the information they need. My disagreement with the majority is based on two reasons. First, waiver is the intentional relinquishment of a known right. Gilman v. Butzloff, 155 Fla. 888, 22 So. 2d 263 (Fla.1945); Hochman v. Lazarus Homes Corp., 324 So. 2d 205 (Fla. 3d DCA 1975). In this case, however, the court required counsel to exercise their peremp-tories in total ignorance of the action taken by opposing counsel. Under these circumstances, no waiver could lawfully occur. My second reason stems from…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Augustine v. S. Bell Tel. & Tel. Co., 91 So. 2d 320 (Fla. 1956)
- Arcade Steam Laundry v. Bass, 159 So. 2d 915 (Fla. 2d DCA 1964)
- Peeler v. Indep. Life & Accident Ins. Co., 206 So. 2d 34 (Fla. 3d DCA 1967)
- Lungu v. Walters, 198 So. 2d 99 (Fla. 3d DCA 1967)