Dale Sundby v. Steven C. Marks

• Court: District Court of Appeal of Florida
• Decided: February 12, 2025
• Docket: 3D2024-1569
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 12, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1569 Lower Tribunal No. 24-2949-CA-01 ________________

Dale Sundby, et al., Appellants,

vs.

Steven C. Marks, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge.

Dale Sundby and Edith Sundby, in proper persons.

Sperling Kenny Nachwalter, LLC and Deborah S. Corbishley, for appellees.

Before EMAS, MILLER and GORDO, JJ.

PER CURIAM. Affirmed. See Pesce v. Morgan, 388 So. 3d 1107, 1108 (Fla. 3d DCA

2024) (“While we review an order granting a motion to dismiss de novo, we

review the trial court's granting of dismissal with prejudice versus without

prejudice under an abuse of discretion standard.”); Lam v. Univision

Commc’ns, Inc., 329 So. 3d 190, 193 (Fla. 3d DCA 2021) (“[U]pon a motion

to dismiss a complaint for failure to state a cause of action, all material

allegations of the complaint are taken as true. Those allegations are then

reviewed in light of the applicable substantive law to determine the existence

of a cause of action.” (quoting Peeler v. Indep. Life & Acc. Ins. Co., 206 So.

2d 34, 36 (Fla. 3d DCA 1967))); Barret v. City of Margate, 743 So. 2d 1160,

1162-63 (Fla. 4th DCA 1999) (“In Florida, every cause of action, whether

derived from statute or common law, is comprised of necessary elements

which must be proven for the plaintiff to prevail. It is a cardinal rule of

pleading that a complaint be stated simply, in short and plain language. The

complaint must set out the elements and the facts that support them so that

the court and the defendant can clearly determine what is being alleged. The

complaint, whether filed by an attorney or pro se litigant, must set forth

factual assertions that can be supported by evidence which gives rise to legal

liability. It is insufficient to plead opinions, theories, legal conclusions or

argument.”); Jordan v. Nienhuis, 203 So. 3d 974, 976 (Fla. 5th DCA 2016)

2 (“[G]eneral, vague and conclusory statements are insufficient to satisfy the

requirement that a pleader allege a short and plain statement of the ultimate

facts showing the pleader is entitled to relief.”) (internal quotation marks and

citation omitted); Stein v. BBX Cap. Corp., 241 So. 3d 874, 876 (Fla. 4th DCA

2018) (“To survive a motion to dismiss, a complaint must allege ‘sufficient

ultimate facts’ showing entitlement to relief. While we must accept the facts

alleged as true and make all reasonable inferences in favor of the pleader .

. . conclusory allegations are insufficient.”); Turnberry Vill. N. Tower Condo.

Ass’n, Inc. v. Turnberry Vill. S. Tower Condo. Ass’n, Inc., 224 So. 3d 266,

267 (Fla. 3d DCA 2017) (“Appellant . . . appeals from an order dismissing,

with prejudice, its amended complaint, which asserted a claim for . . . a

breach of fiduciary duty. We affirm the trial court’s order, as appellant’s

amended complaint failed to set forth ‘a short and plain statement of the

ultimate facts showing that the pleader is entitled to relief.’ Appellant’s

amended complaint contained . . . only conclusory [or vague] allegations . .

. . This is insufficient to withstand a motion to dismiss.” (quoting Fla. R. Civ.

P. 1.110(b)).