Capital Bank of North Bay Village v. Hartnett Building Management, Inc.

District Court of Appeal of Florida

Capital Bank of North Bay Village v. Hartnett Building Management, Inc.

353 So. 2d 159, 1977 Fla. App. LEXIS 17177

District Court of Appeal of Florida·Decided November 29, 1977·No. No. 76-1275·Published

Opinion

PER CURIAM.

This is an appeal from an order dismissing with prejudice the appellees as defendants from plaintiff’s complaint. The appel-lees were the alleged endorsees and the alleged guarantors of a bank debt. After hearing the motion to dismiss, the trial court entered the order appealed from which found as a matter of fact that the personal guarantees were inconsistent with negotiations between the bank and the [160]*160debtors. This finding of fact is outside the scope of a ruling on a motion to dismiss inasmuch as a motion to dismiss admits all matters well pleaded and should be granted with prejudice only when it appears from the complaint that the plaintiff cannot state a cause of action against the defendants. See Posey v. Ford Motor Company, 128 So.2d 149 (Fla. 1st DCA 1961); and Leonard v. Browne, 134 So.2d 872 (Fla. 1st DCA 1961).

Therefore, the order dismissing the complaint as to these defendants is reversed with directions to grant the defendants a reasonable time to file an answer setting up the factual defenses relied upon.

Reversed and remanded with directions.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

This is an appeal from an order dismissing with prejudice the appellees as defendants from plaintiff’s complaint. The appel-lees were the alleged endorsees and the alleged guarantors of a bank debt. After hearing the motion to dismiss, the trial court entered the order appealed from which found as a matter of fact that the personal guarantees were inconsistent with negotiations between the bank and the [160]*160debtors. This finding of fact is outside the scope of a ruling on a motion to dismiss inasmuch as a motion to dismiss admits all matters well pleaded and should be granted with prejudice only when it appears from the complaint that the plaintiff cannot state a cause of action against the defendants. See Posey v. Ford Motor Company, 128 So.2d 149 (Fla. 1st DCA 1961); and Leonard v. Browne, 134 So.2d 872 (Fla. 1st DCA 1961).

Therefore, the order dismissing the complaint as to these defendants is reversed with directions to grant the defendants a reasonable time to file an answer setting up the factual defenses relied upon.

Reversed and remanded with directions.

Capital Bank of North Bay Village v. Hartnett Building Management, Inc., 353 So. 2d 159, 1977 Fla. App. LEXIS 17177 (Fla. Ct. App. 1977).

Pincite

353 So. 2d 159 (Capital Bank of North Bay Village v. Hartnett Building Management, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related