Mapoles v. Mapoles ex rel. Mapoles

332 So. 2d 373, 1976 Fla. App. LEXIS 15144

• Court: District Court of Appeal of Florida
• Decided: May 28, 1976
• Docket: No. BB-329
• Status: Published

Opinion

MILLS, Judge.

By interlocutory appeal, the defendants seek review of the trial court’s order granting plaintiffs’ motion for summary judgment as to liability in a negligence action seeking damages for injuries caused by a dog.

Although the amended complaint charges Cam Mapoles with negligence only, both parties to this appeal urge us to determine whether, under the facts of this case, Section 767.01, Florida Statutes, makes Cam absolutely liable for the actions of her dog. We cannot do this, because this issue was not raised by the pleadings. Therefore, this issue was not legally presentable to the trial court nor is this issue legally presentable to this court.

Under the issues as made by the amended complaint and the answer thereto, the record on appeal fails to conclusively establish that there was no genuine triable issue of a material fact. Under these circumstances, plaintiffs were not entitled to a summary judgment as to liability as a matter of law, and the trial court erred in holding to the contrary.

The order granting summary judgment as to liability is reversed. This cause is remanded to the trial court for the purpose of considering any motions which might be made to raise the applicability of Section 767.01, Florida Statutes, of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.

BOYER, C. J., and McCORD, J., concur.