J & S COIN OPERATED MACHINES, INC., APPELLANT,
v.
DAVID GOTTLIEB, MARK GOTTLIEB, JOSEPH COMRAS, CITIZENS OF THE STATE OF NEW YORK, AND U. S. SHELTER CORPORATION, ET AL., APPELLEES
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The court held that a motion for judgment on the pleadings was prematurely filed before answers were due, and that the trial court erred in construing a modifying letter without considering the entire agreement and parties' intent.
Plaintiff appealed an order granting defendants' motion for judgment on the pleadings regarding a franchise agreement and its modification. The motion…
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NATHAN, Judge.
This is an appeal by the plaintiff from an adverse order on defendants’ motion for judgment on the pleadings in an action for injunction and declaratory judgment as to the parties rights under a franchise agreement for coin operated laundry equipment, and a subsequent modification of the agreement. Plaintiff raises two points on appeal.
The first point is that judgment on the pleadings was improper as defendants’ motion for judgment on the pleadings was filed prior to the filing of defendants’ answers), and the pleadings were not closed. There is no waiver reflected in the record. Therefore, the cause was not at issue, the motion was prematurely filed and the court erred in entertaining it at this stage of the proceedings. Storer v. Florida Sportservice, Inc., 115 So. 2d 433 (Fla.3d DCA 1959); Shealor v. Ruud, 221 So. 2d 765, 768 (Fla.4th DCA 1969); White v. Dyer, 261 So. 2d 863 (Fla.2d DCA 1972); Fla.R.Civ.P. 1.140(c).
The second point is that the court summarily construed the letter modifying the agreement without considering the legal effect of both instruments together and without considering evidence as to the intent of the parties. We agree. As a general rule, it is the duty of the court to determine the intention of the parties from the language used, apparent objects to be accomplished, other provisions in the agreement which might shed light on the question, and the surrounding circumstances at the time the agreement was entered into. Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., Inc., 274 So. 2d 33, 15 (Fla.3d DCA 1973); Bornstein v. Somerson, 341 So. 2d 1043, 1047 (Fla.2d DCA 1977).
Reversed and remanded.
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Citator
Cited By (16 total)
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Jaar v. The Univ. OF Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)…our review of the clear and unambiguous language contained in the contract and its apparent objectives, we conclude, as a matter of law, that Dr. Ward served as an employee and agent of the University.7 See J & S Coin Operated Machines v. Gottlieb, 362 So. 2d 38 (Fla. 3d DCA 1978). There is no question that at the time the tragic incident occurred, Dr. Ward was acting in accordance with the duties he assumed under the express and intertwining terms of his contracts' with the University and the University’s…
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Terex Trailer Corp. v. McILWAIN, 579 So. 2d 237 (Fla. 1st DCA 1991)…determined first from the language used, second, from the apparent objects to be accomplished, other provisions in the agreement, and the surrounding circumstances when the agreement was entered into. J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So. 2d 38, 39 (Fla. 3d DCA 1978). Parties to a contract may agree to limit their remedies, and those remedies need not be the same, although contract provisions will not be enforced unless they are reasonable. Ocean Dunes of Hutchinson v. Colangelo, 463 So. 2…
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Manzo v. Patch Publ'g Co., Inc., 403 So. 2d 469 (Fla. 5th DCA 1981)…sicians Protective Trust Fund, 376 So. 2d 461 (Fla. 3d DCA 1979); Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So. 2d 676 (Fla. 4th DCA 1975); 51C C.J.S. Landlord & Tenant § 245 (1968). . J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So. 2d 38 (Fla. 3d DCA 1978); see Mathews v. Florida Crossbreeds, Inc., 330 So. 2d 183 (Fla. 2d DCA 1976); Royal American Realty, Inc. v. Bank of Palm Beach and Trust Co., 215 So. 2d 336 (Fla. 4th DCA 1968). . Zilber Cab Co. v. Capeletti Bros., Inc., 303 So.…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bornstein v. Somerson, 341 So. 2d 1043 (Fla. 2d DCA 1977)
- BAL Harbour Shops, Inc. v. Greenleaf & Crosby Co., Inc., 274 So. 2d 13 (Fla. 3d DCA 1973)
- City OF Coral Gables v. Metro. Dade Cnty., 221 So. 2d 765 (Fla. 3d DCA 1969)
- Shealor v. Ruud, 221 So. 2d 765 (Fla. 4th DCA 1969)
- Storer v. Fla. Sportservice, Inc., 115 So. 2d 433 (Fla. 3d DCA 1959)
- Chateau Enters., Inc. v. Earnest Overstreet, 115 So. 2d 433 (Fla. 3d DCA 1959)
- Burnice Mincey White & Bankers Fire & Cas. Co. v. Dyer, 261 So. 2d 863 (Fla. 2d DCA 1972)