CAM MAPOLES AND AUTO-OWNERS INSURANCE COMPANY, APPELLANTS (DEFENDANTS),
v.
CLAYTON WEBB MAPOLES, III, BY HIS NEXT FRIEND AND FATHER, CLAYTON WEBB MAPOLES, JR., APPELLEES (PLAINTIFFS)
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The trial court erred in granting summary judgment for plaintiffs on liability because genuine triable issues of material fact existed. The court also declined to rule on a statutory liability issue not raised in the pleadings.
Plaintiffs sued defendants for injuries caused by a dog. The trial court granted plaintiffs' motion for summary judgment as to liability.…
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MILLS, Judge.
By interlocutory appeal, the defendants seek review of the trial court’s order granting plaintiffs’ motion for summary judgment as to liability in a negligence action seeking damages for injuries caused by a dog.
Although the amended complaint charges Cam Mapoles with negligence only, both parties to this appeal urge us to determine whether, under the facts of this case, Section 767.01, Florida Statutes, makes Cam absolutely liable for the actions of her dog. We cannot do this, because this issue was not raised by the pleadings. Therefore, this issue was not legally presentable to the trial court nor is this issue legally presentable to this court.
Under the issues as made by the amended complaint and the answer thereto, the record on appeal fails to conclusively establish that there was no genuine triable issue of a material fact. Under these circumstances, plaintiffs were not entitled to a summary judgment as to liability as a matter of law, and the trial court erred in holding to the contrary.
The order granting summary judgment as to liability is reversed. This cause is remanded to the trial court for the purpose of considering any motions which might be made to raise the applicability of Section 767.01, Florida Statutes, of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.
Reversed and remanded.
BOYER, C. J., and McCORD, J., concur.
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Cam Mapoles & Auto-Owners Ins. Co. v. Mapoles, 350 So. 2d 1137 (Fla. 1st DCA 1977)…ty in civil actions”. ■ . It is not the owner’s acts, but it is the act of ownership by which statutory liability is imposed. . This is the second interlocutory appeal concerning liability in this case. On the prior appearance, Mapoles v. Mapoles, 332 So. 2d 373 (Fla. 1st DCA 1976), this court, in reversing a summary judgment as to liability, stated: “ . . . This cause is remanded to the trial court for the purpose of considering any motions which might be made to raise the applicability of Section 767.01,…
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Verla and Lamar Mayo v. Allen, 973 So. 2d 1257 (Fla. 1st DCA 2008)…he personal belongings, and the value of repairs to the Overland RV. With respect to the down-payment and the value of repairs, those claims were not raised by the Mayos in their complaint and will not be addressed on appeal. See Mapoles v. Mapoles, 332 So. 2d 373 (Fla. 1st DCA 1976) (holding that issues not raised in the pleadings may not be addressed on appeal). With respect to the Overland RV, the trial court found that the Mayos defaulted under the terms of the sales agreement when they failed to make th…