JACOB SOLOMON, APPELLANT,
v.
BARON DE HIRSCH MEYER AND MILTON WEISS, A PARTNERSHIP, T/D/B/A MEYER, WEISS & ROSEN, APPELLEES
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The Florida Supreme Court reversed a trial court's dismissal of a negligence claim against attorneys, finding the complaint sufficient to proceed to answer. The court emphasized that defensive matters should be raised in an answer or motion for summary judgment, not a motion to dismiss.
Yes, the second amended complaint stated a cause of action sufficient to withstand a motion to dismiss.
“as against a motion to dismiss, the second amended complaint states a cause of action.”
Establishes the court's primary finding regarding the sufficiency of the complaint.
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Join FLexlaw to unlock all legal intelligenceThe appellant sued appellees, attorneys, for alleged negligence in representing him during the purchase of assets from a bankrupt business. The trial …
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PER CURIAM.
The trial judge granted a motion to dismiss the second amended complaint against appellees, who were defendants below, in an action by appellant to recover damages for alleged negligence in representing appellant in the purchase of certain assets of a bankrupt business.
A careful examination of the record leads us to the conclusion that, as against a motion to dismiss, the second amended complaint states a cause of action. The defensive matters argued in the brief of appellees may be appropriately presented by answer or , on motion for summary judgment but they cannot be considered on the motion to dismiss the complaint. We do not here pass .upon the ultimate right of recovery. This will depend upon ,the showing to be made by the proof, if any. Our present opinion is limited by the record entirely to the matter of the sufficiency of the pleading.
It being our view that the second amended complaint states a cause of action requiring an answer, the order granting the motion to dismiss and judgment entered pursuant thereto is reversed and the cause is remanded for further proceedings in accordance with this opinion.
TERRELL, Acting Chief Justice, HOBSON and THORNAL, JJ., and MORROW, Associate Justice, concur.
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Solomon v. Baron de Hirsch Meyer and Milton Weiss, 116 So. 2d 37 (Fla. 3d DCA 1959)…nsive matters are sufficient to refute the alleged negligence. ' ' The summary judgment is therefore reversed and this cause remanded for further proceedings. Reversed. HORTON, C. J., and CARROLL, CHAS., J., concur. . Solomon v. Meyer, Fla.1956, 89 So. 2d 865. . This prior action was by Solomon, the present appellant, seeking to recover certain monies paid to L. M. Gerstel, a trustee in bankruptcy. The opinion of the United States Court of Appeals for the Fifth Circuit in that cause is reported at 207 F…