DeWitt v. Zimmerman
| Decision Date | 29 November 1978 |
| Docket Number | No. 77-488,77-488 |
| Citation | 366 So.2d 46 |
| Court | Florida District Court of Appeals |
| Parties | S. R. DeWITT, Jr. and Rhodell Murray, Appellants, v. Rollin W. ZIMMERMAN, as Sheriff of Brevard County, State of Florida, Appellee. |
John M. Starling of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellants.
Joseph R. Moss, Cocoa, for appellee.
On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.
REVERSED in part, AFFIRMED in part.
BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.
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...trial court may ultimately be correct, it was inappropriate to make such a legal conclusion on a motion to dismiss. DeWitt v. Zimmerman, 366 So.2d 46 (Fla. 4th DCA 1978). Accord Cherry v. Pirrello, 324 So.2d 158 (Fla. 3d DCA We have not overlooked Anheuser's arguments that we should treat i......
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