DeBenebetto v. Fodera

578 So. 2d 402, 1991 Fla. App. LEXIS 3571

Opinions

PER CURIAM.

This is an appeal from the trial court’s final order that dismissed the complaint and counterclaim.

Appellant Robert DeBenedetto [Robert] and Patricia Fodera [Patricia] filed a complaint against the appellee Salvatore Fod-era [Salvatore] which alleged nonpayment of a loan. Salvatore filed a counterclaim which sought damages for conversion of a security deposit and rent receipts. Salvatore also requested that a writ of replevin issue for the return of his personal property held by Robert and Patricia. The trial judge issued an order to show cause why the items should not be returned. Later, the trial court granted the writ. At the same time, without a motion to dismiss or a hearing, the trial court dismissed the complaint and counterclaim and also reserved jurisdiction to enforce its order for the return of Salvatore’s property.

We hold that the trial judge erred in sua sponte dismissing the complaint. See Cox v. Holder, 345 So.2d 847 (Fla. 1st DCA 1977). The prejudgment writ of replevin did not resolve the allegations contained in Robert’s complaint. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

GUNTHER and GARRETT, JJ., concur. McNULTY, JOSEPH P., Associate Judge, dissents with opinion.