Wagman v. Lefcoe

District Court of Appeal of Florida

Wagman v. Lefcoe

143 So. 2d 550, 1962 Fla. App. LEXIS 3072

CourtDistrict Court of Appeal of Florida

DecidedJune 26, 1962

DocketNo. 61-432

StatusPublished

Cited by1 cases

This text of 143 So. 2d 550 (Wagman v. Lefcoe) 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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Wagman v. Lefcoe, 143 So. 2d 550, 1962 Fla. App. LEXIS 3072 (Fla. Ct. App. 1962).

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Opinion

PER CURIAM.

This appeal is from an order entered on a motion to dismiss, which dismissed with prejudice one of two counts of the amended complaint. Thereafter, the plaintiff dismissed the second count. Following argument here, we dismissed the appeal. On rehearing, the appeal was reinstated and is now determined on the merits.

The action in the trial court was one brought by a lessee, after ouster for default, to recover a security deposit. The trial judge ruled the action was premature under express provisions of the written lease, and we agree. See also Kanter v. Safran, Fla.1953, 68 So.2d 553, 558; Id., Fla.1958, 99 So.2d 706; Hyman v. Cohen, Fla.1954, 73 So.2d 393; Stenor, Inc. v. Lester, Fla.1951, 58 So.2d 673. However, the dismissal should not have been with prejudice, and the order appealed from is hereby modified to be without prejudice, and, as so modified, is affirmed.

Modified and affirmed.

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PER CURIAM.

This appeal is from an order entered on a motion to dismiss, which dismissed with prejudice one of two counts of the amended complaint. Thereafter, the plaintiff dismissed the second count. Following argument here, we dismissed the appeal. On rehearing, the appeal was reinstated and is now determined on the merits.

The action in the trial court was one brought by a lessee, after ouster for default, to recover a security deposit. The trial judge ruled the action was premature under express provisions of the written lease, and we agree. See also Kanter v. Safran, Fla.1953, 68 So.2d 553, 558; Id., Fla.1958, 99 So.2d 706; Hyman v. Cohen, Fla.1954, 73 So.2d 393; Stenor, Inc. v. Lester, Fla.1951, 58 So.2d 673. However, the dismissal should not have been with prejudice, and the order appealed from is hereby modified to be without prejudice, and, as so modified, is affirmed.

Modified and affirmed.

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143 So. 2d 550, 1962 Fla. App. LEXIS 3072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagman-v-lefcoe-fladistctapp-1962.

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