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

CourtDistrict Court of Appeal of Florida

DecidedNovember 29, 1977

DocketNo. 76-1275

StatusPublished

This text of 353 So. 2d 159 (Capital Bank of North Bay Village v. Hartnett Building Management, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

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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.

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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.

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353 So. 2d 159, 1977 Fla. App. LEXIS 17177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capital-bank-of-north-bay-village-v-hartnett-building-management-inc-fladistctapp-1977.

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