Zaglin v. Dinkler

District Court of Appeal of Florida

Zaglin v. Dinkler

449 So. 2d 417, 1984 Fla. App. LEXIS 12979

CourtDistrict Court of Appeal of Florida

DecidedMay 8, 1984

DocketNo. 83-2406

StatusPublished

This text of 449 So. 2d 417 (Zaglin v. Dinkler) 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

Zaglin v. Dinkler, 449 So. 2d 417, 1984 Fla. App. LEXIS 12979 (Fla. Ct. App. 1984).

Pincite

Opinion

PER CURIAM.

The appellees have correctly conceded that the trial court erred in dismissing Counts II, III and IV of the appellant’s complaint, since it is abundantly clear that (1) the statute of limitations provides no basis for dismissal unless, which is not the case here, it affirmatively appears on the face of the complaint that the counts are limitations barred; (2) similarly, the dead man’s statute, § 90.602, Fla.Stat., cannot support a dismissal since a trial court, in considering a motion to dismiss, “is not permitted to speculate as to whether a plaintiff will be able to prove his allegations, rather a court is required to accept all well pleaded allegations contained in the complaint as true,” Raney v. Jimmie Diesel Corp., 362 So.2d 997, 998 (Fla. 3d DCA 1978); see also Wallace v. Gilbert, 250 So.2d 14 (Fla. 2d DCA 1971); and (3) each of the dismissed counts states a cause of action so as not to be subject on that ground to dismissal, much less, as occurred below, dismissal with prejudice. Accordingly, the order under review is reversed and the cause remanded for further proceedings.

Reversed and remanded.

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

PER CURIAM.

The appellees have correctly conceded that the trial court erred in dismissing Counts II, III and IV of the appellant’s complaint, since it is abundantly clear that (1) the statute of limitations provides no basis for dismissal unless, which is not the case here, it affirmatively appears on the face of the complaint that the counts are limitations barred; (2) similarly, the dead man’s statute, § 90.602, Fla.Stat., cannot support a dismissal since a trial court, in considering a motion to dismiss, “is not permitted to speculate as to whether a plaintiff will be able to prove his allegations, rather a court is required to accept all well pleaded allegations contained in the complaint as true,” Raney v. Jimmie Diesel Corp., 362 So.2d 997, 998 (Fla. 3d DCA 1978); see also Wallace v. Gilbert, 250 So.2d 14 (Fla. 2d DCA 1971); and (3) each of the dismissed counts states a cause of action so as not to be subject on that ground to dismissal, much less, as occurred below, dismissal with prejudice. Accordingly, the order under review is reversed and the cause remanded for further proceedings.

Reversed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

449 So. 2d 417, 1984 Fla. App. LEXIS 12979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zaglin-v-dinkler-fladistctapp-1984.

Opinion

Related

Cite This Page — Counsel Stack