Midflorida Schools Federal Credit Union v. Fansler, 81-53
Decision Date | 23 October 1981 |
Docket Number | No. 81-53,81-53 |
Parties | MIDFLORIDA SCHOOLS FEDERAL CREDIT UNION, Appellant, v. Robert Wesley FANSLER, as personal representative of the Estate of Thelma H.Fansler, Deceased, Appellee. |
Court | Florida District Court of Appeals |
Philip O. Allen of DeVane, Munson, Anderson & Allen, Lakeland, for appellant.
Wallace L. Storey, Bartow, for appellee.
This is an appeal from the trial court's dismissal with prejudice of appellant's second amended complaint for failure to state a cause of action.
Appellant Midflorida Schools Federal Credit Union filed a claim in the estate of Thelma H. Fansler, deceased, for monies loaned to her on the basis of an open-end credit agreement which was attached to the claim. Appellee objected to the claim and appellant filed its complaint, followed by an amended complaint, and alleged that Thelma H. Fansler, deceased, had entered into the open-end credit agreement with the Polk County Teacher's Credit Union through which she borrowed the maximum of $3,500. The rights of the alleged agreement were then assigned to appellant. As evidence of the debt, appellant attached to its complaint and amended complaint the document entitled a "Revolving Credit Plan, Application, Agreement, Note and Truth-in-lending Disclosure." Appellee, Fansler's personal representative, moved to dismiss the amended complaint for failure to state a cause of action, specifically arguing that the exhibit attached was incomplete, vague, non-negotiable, and without a sufficient promise to pay. The trial court dismissed the amended complaint with leave to amend. Thereafter, appellant filed its second amended complaint, attaching the same exhibit and alleging a series of loans to the deceased pursuant to the agreement up to the maximum of $3,500, and that the deceased was then indebted to appellant in the amount of $3,359.88. Upon appellee's motions to strike and dismiss, the trial court struck count I and dismissed counts II and III of the second amended complaint.
The court's basis for striking count I was that it had previously been ruled upon on a prior motion to dismiss. We find that to have been error for the same reasons we discuss regarding the dismissal of counts II and III. It dismissed counts II and III on the basis that they alleged a series of loans or future advances that were not specifically set forth in the agreement attached and that since they were outside the attached agreement they were also then beyond the scope of the claim filed in the estate and did not comply with section 733.703, Florida Statutes (1979). We cannot accept that construction of the agreement attached or section 733.703. The agreement specifically provided for future...
To continue reading
Request your trial-
Shaffer v. Wells Fargo Guard Services, a Subsidiary of Burns Intern. Sec. Services, a Subsidiary of Baker Industries, Inc.
...there is insufficient justification for granting a motion to dismiss for failure to state a claim. Midflorida Schools Fed. Credit Union v. Fansler, 404 So.2d 1178, 1180 (Fla. 2d DCA 1981). Thus, the complaint, viewed in the light most favorable to Shaffer, Midflorida Schools, should not hav......
-
De Ribeaux v. Del Valle, 88-23
...construed in the light most favorable to the plaintiff, is sufficient to constitute a valid claim." Midflorida Schools Fed'l Credit Union v. Fansler, 404 So.2d 1178, 1180 (Fla.2d DCA 1981). The trial court must confine itself to the four corners of the complaint in making its determination.......
-
Roberts v. Shop & Go, Inc., 85-2132
...14 (Fla. 3d DCA 1983), and should not be resolved by a dismissal in the pleading stage of the action. Midflorida Schools Federal Credit Union v. Fanster, 404 So.2d 1178 (Fla. 2d DCA 1981). 1 Our disposition of the appellant's common law negligence contention encompasses the claim based upon......
-
Gandy v. Trans World Computer Tech. Group, 2D00-3295.
...appears beyond doubt that the plaintiff could prove no set of facts that would entitle him to relief. Midflorida Sch. Fed. Credit Union v. Fansler, 404 So.2d 1178, 1180 (Fla. 2d DCA 1981). The essential elements of commonlaw fraud are: (1) a false statement of fact; (2) known by the person ......