Gamma Development Corp. v. Steinberg

Citation621 So.2d 718
Decision Date26 May 1993
Docket NumberNo. 92-0393,92-0393
Parties18 Fla. L. Week. D1311 GAMMA DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. Paul B. STEINBERG, and The Law Offices of Steinberg, Merlin & Slewett, P.A., Appellees.
CourtCourt of Appeal of Florida (US)

Robert A. Eisen, Boca Raton, for appellant.

Robert H. Yaffe, Miami Beach, for appellees.

ROSS, J., Associate Judge.

This is an appeal of a dismissal with prejudice of a complaint for civil theft and conversion.

Appellant Gamma originally filed an action against defendants Michael Gouin, Paul B. Steinberg and the Law Offices of Steinberg, Merlin & Slewett for breach of contract and to establish and foreclose an equitable lien against the escrow account of the Law Office. Gamma claimed the escrowed funds held by the Law Office were due from Gouin to Gamma for the payment of a promissory note. Through discovery, it was learned that the escrowed funds were removed from the Law Office escrow account and applied against an outstanding attorney fee bill owed from Gouin to the Law Office. Gamma then amended its complaint to include counts of civil theft and conversion against the Law Office and Steinberg. Steinberg and the Law Office ultimately filed a motion to dismiss the complaint and to interplead the funds into the registry of the court.

A hearing was held upon appellees' motion to dismiss. The motion to dismiss was granted with prejudice and rehearing was denied. The trial court did not articulate or state its reasons for the dismissal with prejudice.

A motion to dismiss a complaint is solely to determine whether the complaint has alleged a cause of action upon which relief can be granted. Alexander Hamilton Corporation v. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987). The trial court should look only to the four corners of the pleading and the allegations should be taken as true without regard of ability of pleader to prove the same. Gilbert v. Oil Conservation, Inc., 460 So.2d 1027 (Fla. 4th DCA 1984); Sovran Bank, N.A. v. Parsons, 547 So.2d 1044 (Fla. 4th DCA 1989); Alexander, supra.

Leave to amend should be liberally given and a dismissal with prejudice is not proper unless the privilege to amend has been abused, or it is clear that the pleading cannot be amended to state a cause of action. Dryden v. Bogard, 488 So.2d 672 (Fla. 4th DCA 1986); Kairalla v. Mac Arthur Foundation, 534 So.2d 774 (Fla. 4th DCA 1988); Delia & Wilson, Inc. v. Wilson, 448 So.2d 621 (Fla. 4th DCA 1984); Horacio O. Ferrea North American Division, Inc. v. Moroso Performance Products, Inc., 553 So.2d 336 (Fla. 4th DCA 1989).

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    ...is solely to determine whether the complaint has alleged a cause of action upon which relief can be granted." Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718, 719 (Fla. 4th DCA 1993). As a result, when considering a motion to dismiss a complaint, the trial court's "gaze is limited to the four......
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    ...2003) (absent findings of willful noncompliance, court abuses its discretion in dismissing with prejudice); Gamma Dev. Corp. v. Steinberg, 621 So.2d 718, 719 (Fla. 4th DCA 1993) (abuse of discretion to dismiss complaint unless it appears privilege to amend has been abused or that complaint ......
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