Dolphin Truck Leasing, Inc. v. Perry

317 So. 2d 122, 1975 Fla. App. LEXIS 14138

• Court: District Court of Appeal of Florida
• Decided: July 22, 1975
• Docket: No. 74-1448
• Status: Published

Opinion

PER CURIAM.

This appeal presents for review the court’s order dismissing two counts of a complaint¹ which sought a declaratory judgment and other relief. The complaint asks the court’s construction of a paragraph reading as follows:

“Seller further acknowledges and agrees that this transaction may be can-celled ... in the event Buyer is unable to make satisfactory arrangements with General Motors Acceptance Corporation and the Chevrolet Division of General Motors Corporation for the continuation of the business and operations of the corporation. . . ”

The trial court dismissed the complaint upon a holding that the contract clearly gave the buyer only the option of cancel-ling the contract. Our reading of the complete contract and the complaint convinces us that it does not appear without dispute that the contract is unambiguous. Plaintiff should have an opportunity to present facts establishing the intent of the parties if he is able to do so. See Holmes v. Kilgore, 1925, 89 Fla. 194, 103 So. 825.

We do not mean to preclude any allowable procedure under the rules by either party in this suit. The extent of our holding is that the two counts were improperly dismissed without leave to amend.

Reversed and remanded.

1 . See Mendez v. West Flagler Family Association, Fla.1974, 303 So.2d 1.