Sherman v. Abbott

District Court of Appeal of Florida

Sherman v. Abbott

142 So. 2d 766, 1962 Fla. App. LEXIS 2994

CourtDistrict Court of Appeal of Florida

DecidedJune 6, 1962

DocketNo. 2852

StatusPublished

This text of 142 So. 2d 766 (Sherman v. Abbott) 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.

Bluebook

Sherman v. Abbott, 142 So. 2d 766, 1962 Fla. App. LEXIS 2994 (Fla. Ct. App. 1962).

Pincite

Opinion

PER CURIAM.

By order, the chancellor denied motion of appellant-defendant to dismiss the complaint of appellee-plaintiff. The complaint was filed in chancery, and its object primarily is to have a 99-year lease held by appellant terminated and cancelled. The appeal is from the denial order and is interlocutory.

The ground of the motion is that the complaint failed to state a cause of action. Basis for the relief sought, under the allegations of the complaint, is the failure of the appellant lessee to comply with certain terms and conditions of the lease. Asserted as acts of default are failure by the lessee to make installment payments on a first mortgage encumbering both the fee and leasehold estates, failure to pay real estate and personal property taxes, and failure to pay a certain improvement lien.

On the appeal, the contention made by appellant is restricted solely to the proposition that appellee has failed to allege compliance with a paragraph of the lease which provides that there should be no forfeiture on the part of the lessee, unless the lessee should fail to cure any default within 30 days after written notice by the lessor to do so.

When the allegations of the complaint are considered in connection with an exhibit made a part of it, we arrive at the conclusion that the complaint is sufficient to withstand the motion. However, at such time as the cause shall be heard on its merits, the question on the issue of whether the appellee has adequately proved the giving [767]*767of the written notice specified will rest with the chancellor.

The order is affirmed.

Affirmed.

ALLEN, Acting C. J., and KANNER and SMITH, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

By order, the chancellor denied motion of appellant-defendant to dismiss the complaint of appellee-plaintiff. The complaint was filed in chancery, and its object primarily is to have a 99-year lease held by appellant terminated and cancelled. The appeal is from the denial order and is interlocutory.

The ground of the motion is that the complaint failed to state a cause of action. Basis for the relief sought, under the allegations of the complaint, is the failure of the appellant lessee to comply with certain terms and conditions of the lease. Asserted as acts of default are failure by the lessee to make installment payments on a first mortgage encumbering both the fee and leasehold estates, failure to pay real estate and personal property taxes, and failure to pay a certain improvement lien.

On the appeal, the contention made by appellant is restricted solely to the proposition that appellee has failed to allege compliance with a paragraph of the lease which provides that there should be no forfeiture on the part of the lessee, unless the lessee should fail to cure any default within 30 days after written notice by the lessor to do so.

When the allegations of the complaint are considered in connection with an exhibit made a part of it, we arrive at the conclusion that the complaint is sufficient to withstand the motion. However, at such time as the cause shall be heard on its merits, the question on the issue of whether the appellee has adequately proved the giving [767]*767of the written notice specified will rest with the chancellor.

The order is affirmed.

Affirmed.

ALLEN, Acting C. J., and KANNER and SMITH, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

142 So. 2d 766, 1962 Fla. App. LEXIS 2994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-abbott-fladistctapp-1962.