Baird v. Continental Insurance Co.

237 So. 2d 206, 1970 Fla. App. LEXIS 6119

• Court: District Court of Appeal of Florida
• Decided: May 11, 1970
• Docket: No. 69-707
• Status: Published

Opinion

PER CURIAM.

Although agreeing that the trial court correctly granted the defendants’ motion for judgment on the pleadings, as same were then constituted, we feel that the justice of the cause requires that plaintiffs be given an opportunity to amend their complaint so that it might be determined if a proper way exists whereby plaintiffs may avoid the defects revealed in their complaint. See Rule 1.010 and Rule 1.190(e) Florida Rules of Civil Procedure, 30 F.S.A. and Sea Shore Motel Corporation v. Fireman’s Fund Insurance Company, Fourth District Court of Appeal, 233 So.2d 651, opinion filed March 16, 1970. We do not suggest, inferentially or otherwise, that their effort will be necessarily successful. We determine only that the rules should not be so finely drawn as to prohibit a second chance to plead an acceptable cause of action under the circumstances of this case where the procedure used was tantamount to that of a motion to dismiss.

Reversed and remanded for proceedings consistent herewith.

Reversed.

WALDEN, McCAIN and OWEN, JJ., concur.