CITY NATIONAL BANK OF MIAMI, AS TRUSTEE, APPELLANT,
v.
EUGENE SIMMONS AND MARY SIMMONS, HIS WIFE, AND HOWARD E. SIMMONS AND MARGIE B. SIMMONS, HIS WIFE, APPELLEES
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A bank trustee moved to dismiss a mortgage foreclosure action on the ground that the trust beneficiaries were indispensable parties under Florida Rules of Civil Procedure Rule 1.210(c). The court affirmed the denial of the motion to dismiss, holding that the trustee's motion was procedurally insufficient because it failed to attach supporting documentation of the Land Trust Agreement or set forth specific facts demonstrating why the beneficiaries were indispensable.
The court affirmed the denial of the motion to dismiss, holding that while failure to join indispensable parties may be raised by motion, the trustee's motion was insufficient because it merely stated conclusions without attaching the Land Trust Agreement or setting forth specific facts demonstrating why the beneficiaries were indispensable.
[1] A motion to dismiss for failure to join indispensable parties must be a speaking motion containing facts demonstrating why the alleged indispensable parties are indispens…
[2] A party seeking to dismiss a complaint for failure to join indispensable parties must support the motion with documentary evidence, such as the relevant trust agreement.
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Join FLexlaw to unlock all legal intelligence“Fla.R.Civ.P. Rule 1.140 provides that failure to join indispensable parties may be raised by motion. Obviously, this contemplates a speaking motion which should contain the facts demonstrating why the alleged indispensable parties are indispensable.”
Establishes the procedural requirement that a motion raising indispensable parties must contain factual support, not mere conclusions.
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Join FLexlaw to unlock all legal intelligenceCity National Bank of Miami held legal title to realty in Osceola County, Florida as trustee under an unrecorded Land Trust Agreement. The Simmons ent…
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DOWNEY, Judge.
Appellees sued appellant to foreclose a mortgage on realty in Osceola County, Florida, the legal title to which is held by appellant as trustee under an unrecorded Land Trust Agreement. Appellant moved to dismiss appellees’ complaint on the ground among others, that the complaint failed to join the trust beneficiaries who were alleged to be indispensable parties to the suit. This motion was denied. It is appellant’s contention that Fla.R.Civ.P. Rule 1.210(c) does not authorize suit against the trustee alone because the Land Trust Agreement under which the Trustee was empowered to act did not give the trustee power “to sell and give discharges for the proceeds of the sale, or the rents, income or profits of the estate . . . as required by said rule.
Appellant advises us that in support of the motion to dismiss it tendered to the Court a copy of the Land Trust Agreement in question, that the Court refused to consider it. Appellant further states in the brief that the trial judge “decided that the question of whether or not the beneficiaries must be joined would be better decided as a matter of an affirmative defense rather than on motion to dismiss.”
Fla.R.Civ.P. Rule 1.140 provides that failure to join indispensable parties may be raised by motion. Obviously, this contemplates a speaking motion which should contain the facts demonstrating why the alleged indispensable parties are indispensable. Appellant’s motion to dismiss simply states conclusions. Appellant did not attach a copy of the Land Trust Agreement to its motion to support the allegation relative to indispensable parties. Therefore, while a motion is the proper vehicle to raise the issue of indispensable parties, appellant’s motion was insufficient.
In passing, we note appellees’ reliance upon Grammer v. Roman, 174 So. 2d 443 (Fla.2d DCA 1965). However, we do not feel that case is controlling in the state of this record. In Grammer, although the Land Trust Agreement was not disclosed, the deed vesting title in the trustee was before the court and it contained a grant of powers sufficiently broad to bring the case within the purview of both Section 689.071, Florida Statutes (1975), and Fla.R.Civ.P. Rule 1.210(c).
Accordingly, we affirm the trial judge’s denial of appellant’s motion to dismiss without prejudice to appellant’s right to file a new motion setting forth the facts demonstrating the failure to join indispensable parties and attaching a copy of the Land Trust Agreement. With the proper documentary evidence properly before him the trial judge will be in a position to rule on the merits of appellant’s contention regarding indispensable parties.
AFFIRMED.
CROSS and LETTS, JJ., concur.
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Dr. M.A. Mannish v. Lacayo, 496 So. 2d 242 (Fla. 3d DCA 1986)…ined the record and find no merit in the other asserted basis for the judgment below. See Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980), pet. for review denied, 394 So. 2d 1152 (Fla.1981); City National Bank of Miami v. Simmons, 351 So. 2d 1109 (Fla. 4th DCA 1977). The final judgment under review is reversed and the cause is remanded to the trial court for a new trial. Reversed and remanded.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grammer v. Roman, 174 So. 2d 443 (Fla. 2d DCA 1965)