Braz v. Professional Ins. Corp., 57-366
| Citation | 101 So.2d 594 |
| Decision Date | 11 March 1958 |
| Docket Number | No. 57-366,57-366 |
| Parties | Etta BRAZ, as Executrix for the Estate of Fred Braz, Appellant, v. PROFESSIONAL INSURANCE CORPORATION, a Florida corporation, Appellee. |
| Court | Court of Appeal of Florida (US) |
Kelner & Lewis, Miami, for appellant.
Miller & Miller, Miami, for appellee.
The appeal here is from an order dismissing with prejudice the complaint of the appellant. The order is based upon a motion to dismiss filed by the appellee, which contains in substance the following grounds: (1) the action is barred by laches, (2) the action is barred by res judicata, (3) the failure to attach certain alleged material documents, and (4) the complaint fails to state a cause of action. The lower court's order of dismissal did not specify the ground or grounds upon which the order was based. It, thereupon, becomes necessary to ascertain whether or not the lower court's order dismissing the bill of complaint can be sustained upon any of the grounds contained in appellee's motion.
The first and second grounds of the motion to dismiss, i. e., that the action is barred by laches and/or res judicata, can, we feel, be disposed of upon the authority of Hough v. Menses, Fla.1957, 95 So.2d 410, and Stone v. Stone, Fla.App.1957, 97 So.2d 352, which, in effect, uphold Florida Rules of Civil Procedure 1.8(d) and 1.11(b), 30 F.S.A., requiring such defenses to be incorporated in an answer rather than in a motion to dismiss.
The third ground of the motion is, we feel, without merit in the light of Rule 1.10(a) Florida Rules of Civil Procedure. The intent and purpose of this rule is to avoid unnecessary recitals of documents not particularly germane to the right of action but to require attachment of those documents upon which the cause of action rests or is dependent. In the instant case it affirmatively appeared that the contract upon which the action was brought was attached to the complaint. The other documents related solely to the representative right of the appellant to bring the action. We, therefore, conclude on this point there has been a substantial compliance with the rule.
Upon the fourth ground of the motion to dismiss, we do not find that the order appealed is wholly without foundation. The complaint appears to seek money damages based upon an alleged default under a written contract, at the same time seeking to invoke the jurisdiction of equity by praying for an accounting. Under these circumstances, w...
To continue reading
Request your trial
-
Ganaway v. Henderson
...supra, to transfer the action to the law side, and on that basis remanded the cause for further proceedings. Braz v. Professional Insurance Corp., Fla.App., 101 So.2d 594, was a case in which the chancellor granted with prejudice a motion to dismiss a complaint in equity. The motion was bas......
-
Fletcher v. Williams
...due process. See Rule 1.36, Florida Rules of Civil Procedure.' The same conclusion was reached by the Third District Court of Appeal in the Braz case 14, wherein an order dismissing with prejudice a complaint pursuant to a motion to dismiss on the ground that the action was barred by laches......
-
Evans v. Gray
...Affirmed. 1 This ground of the motion to dismiss is found not to be well taken, upon the authority of Braz v. Professional Insurance Corporation, Fla.App.1958, 101 So.2d 594; Allen v. Hartsfield Co., 52 Ga.App. 549, 183 S.E. 821; Mexican Petroleum Corporation of Georgia v. Head, 64 Ga.App. ......
-
Cook v. Central and Southern Fla. Flood Control Dist., 1129
...30 F.S.A.; Hough v. Menses, Fla.1957, 95 So.2d 410; Woodalls, Inc. v. Varn, Fla.App.1958, 99 So.2d 887; Braz v. Professional Insurance Corporation, Fla.App.1958, 101 So.2d 594; and Banzhaf v. Parrish, Fla.App.1959, 109 So.2d The next two grounds of appeal are interwoven, and we shall deal w......