Holiday Dinner Theatres of America, Inc. v. Bartke

District Court of Appeal of Florida

Holiday Dinner Theatres of America, Inc. v. Bartke

281 So. 2d 376, 1973 Fla. App. LEXIS 7658

CourtDistrict Court of Appeal of Florida

DecidedAugust 1, 1973

DocketNo. 72-964

StatusPublished

Cited by1 cases

This text of 281 So. 2d 376 (Holiday Dinner Theatres of America, Inc. v. Bartke) 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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Holiday Dinner Theatres of America, Inc. v. Bartke, 281 So. 2d 376, 1973 Fla. App. LEXIS 7658 (Fla. Ct. App. 1973).

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Opinion

PER CURIAM.

Appellant, Holiday Dinner Theatres of America, Inc., plaintiff in the trial court, has appealed from an order dismissing with prejudice its third amended complaint. The question presented is whether the said complaint alleges ultimate facts to sufficiently apprise the appellees of the nature of the cause of action and to withstand the attack of the motion to dismiss the said complaint filed by appellees.

FRCP 1.110(b), 30 F.S.A., requires that a claim for relief must state a cause of action, and, further, provides that a minimum complaint consists of a short and plain statement of the ultimate facts justifying the relief.

FRCP 1.120(b) requires that “. [i]n all averments of fraud . . . the circumstances constituting fraud shall be stated with such particularity as the circumstances may permit. . . .”

In viewing the allegations of the third amended complaint in which is incorporated therein by reference certain allegations contained in the original and second amended complaint, we hold that the foregoing pleading standards have been satisfied.

Further, in considering the motion to dismiss, movant is deemed to admit, as true, for the purposes of the motion only, material facts well pleaded therein. This proposition of law is supported by a plethora of case law too numerous to cite herein.

We submit that, in our judgment, the eminent trial judge erred in his decision to terminate the case sub judice at this stage of the proceedings. We hold that the subject complaint stated a cause of action and appellants should have the opportunity of [377]*377attempting to prove its case, i. e., to its day in court.

Accordingly, the decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MANN, C. J., and McNULTY and BOARDMAN, JJ., concur.

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