DeWitt v. Zimmerman

District Court of Appeal of Florida

DeWitt v. Zimmerman

366 So. 2d 46, 1978 Fla. App. LEXIS 16776

District Court of Appeal of Florida·Decided November 29, 1978·No. No. 77-488·Published·Cited by 4 cases

Opinion

DAUKSCH, Judge.

On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.

REVERSED in part, AFFIRMED in part.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

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DAUKSCH, Judge.

On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.

REVERSED in part, AFFIRMED in part.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

DeWitt v. Zimmerman, 366 So. 2d 46, 1978 Fla. App. LEXIS 16776 (Fla. Ct. App. 1978).

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Opinion

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