Chaires v. North Florida Nat. Bank, AN-93
| Decision Date | 25 May 1983 |
| Docket Number | No. AN-93,AN-93 |
| Citation | 432 So.2d 183 |
| Parties | Harry CHAIRES, Ellen Chaires and Chaires Circle C. Beef and Farm, Inc., Appellants, v. NORTH FLORIDA NATIONAL BANK, Appellee. |
| Court | Florida District Court of Appeals |
Donald M. Hinkle, of Green & Fonvielle, P.A., Tallahassee, for appellants.
R. Vinson Barrett, of Barrett, Bajoczky & Barrett, Tallahassee, for appellee.
Appellants, plaintiffs below, appeal from an order of the trial court dismissing with prejudice four of the five counts of the plaintiffs' Third Amended Complaint. This court, by previous order, dismissed the appeal as to Count I, leaving at issue on appeal the propriety of the trial court's dismissal of Counts II, III and V. Count IV, sounding in negligence, was not dismissed and is therefore not at issue on this appeal.
The order of dismissal was predicated upon the ground that certain of the counts failed to state causes of action. Of course, in considering a motion to dismiss, the trial court is confined to the allegations contained within the four corners of the complaint, e.g. Corbett v. Eastern Air Lines, Inc., 166 So.2d 196, 203 (Fla. 1st DCA 1964), and all allegations in the complaint must be accepted as true. E.g. Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981). The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action, and a court is not permitted to speculate as to whether a plaintiff has any prospect of proving the allegations. Raney v. Jimmie Diesel Corp., 362 So.2d 997, 998 (Fla. 3d DCA 1978); accord, Connelly v. Merritt, 273 So.2d 7, 8 (Fla. 1st DCA 1973).
Count II purports to state a statutory cause of action for treble damages for theft pursuant to Section 812.035(7), Fla.Stats. Count III purports to state a cause of action for fraud and deceit. Contrary to the trial court's determination, we are of the view that Counts II and III are sufficient to allege causes of action under the above theories.
In part, appellee, defendant below, argues that Count III was properly dismissed because it was based upon an alleged promise by the defendant to provide "long term, low interest financing" as described in paragraph 18 of the complaint. Appellee asserts that the "statute of frauds," § 725.01, Fla.Stats., precludes recovery because the alleged promise constituted an oral agreement performance of which was not limited to one year. However, Count III is not an action based directly or indirectly on a breach of contract. Compare Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953). The alleged promise referred to in paragraph 18 was only one of a series of acts allegedly committed by the defendant constituting the alleged fraudulent scheme. See Connelly v. Merritt, 273 So.2d 7 (Fla. 1st DCA 1973).
Count V of the complaint alleges that the defendant bank wrongfully paid certain described bank drafts and a cashier's check which were not properly endorsed and that the bank deducted from plaintiffs' business account funds with which to pay those instruments. A description of the dates and amounts of the drafts are attached as an...
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...court is not permitted to speculate as to whether a plaintiff has any prospect of proving the allegations." Chaires v. North Florida National Bank, 432 So.2d 183 (Fla. 1st DCA 1983). In Crews, this court concluded that it was clear "the trial court based his dismissal with prejudice on a mo......
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