Hawkins v. Washington Shores Sav. Bank

Decision Date16 July 1987
Docket NumberNo. 86-378,86-378
Citation12 Fla. L. Weekly 1738,509 So.2d 1314
Parties12 Fla. L. Weekly 1738 Kaydette HAWKINS, Appellant, v. WASHINGTON SHORES SAVINGS BANK, et al., Appellees.
CourtFlorida District Court of Appeals

Kirk N. Kirkconnell and Michael J. Snure, of Muller, Kirkconnell and Lindsey, P.A., Winter Park, for appellant.

Frederick J. Ward and Paul D. Newman of Giles, Hedrick & Robinson, P.A., Orlando, for appellees.

DANIEL, C.W., Associate Judge.

This case involves an appeal from an order dismissing with prejudice the appellant, Kaydette Hawkins', third amended complaint against the appellee, Washington Shores Savings Bank. Plaintiff Hawkins in her third amended complaint filed against Washington Shores Savings Bank, the directors of the bank and Charles Hawkins, alleged that she had opened and maintained a savings share account at Washington Shores in Orlando, Florida, by depositing approximately $10,000 into the account. She alleged further that although the account was opened in the fictitious name of Willie Jacobs, numerous deposits were made and credited to the account as evidenced by entries on her passbook. Further, on July 7, 1981, Hawkins attempted to withdraw the sums deposited in the account along with the accrued interest only to discover that there was no money in the account. Hawkins' six-count complaint alleged a cause of action in breach of contract, conversion, fraud, negligent hiring and retention and two causes of action in negligence. Attached to the complaint as exhibits were the relevant passbook entries from both the actual passbook and the spurious one allegedly provided Kaydette Hawkins by defendant, Charles Hawkins.

Washington Shores filed a motion to dismiss Hawkins' third amended complaint alleging that it had been improperly joined as a party defendant. The bank also moved to dismiss the count in negligent hiring and retention on the basis that Hawkins' complaint failed to contain any allegations of ultimate facts which gave rise to such a duty on the bank's part to hire, retain, terminate or supervise the defendant, Charles Hawkins. Washington Shores alleged further that the statute of limitations had run with regard to the transactions reflected within the complaint. The bank alleged finally that Hawkins had failed to join indispensable parties on the basis that Hawkins had failed to demonstrate that the named directors were all of the directors in existence during and through the relevant time periods.

The trial court entered an order dismissing Hawkins' third amended complaint with prejudice as to Washington Shores. The trial court's order was based on a finding that Hawkins had failed to allege respondeat superior as to the causes of action in breach of contract, negligence and negligent hiring and retention. The court also found that the statute of limitations had run with regard to the transactions reflected in Hawkins' attached exhibits evidencing the relevant passbook entries. With regard to this latter finding, the trial court stated:

... [i]f an attached document negates the pleader's cause of action or defense the plain language of the document will control and may be a basis for a Motion to Dismiss. Health Application System, Inc. v. Hartford Life and Accident Insurance Co., 381 So.2d 294 (Fla. 1st DCA 1980). See also Sachse v. Tampa Music Co., 262 So.2d 17 (Fla. 2nd DCA 1972) and Padgett v. First Federal Savings and Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979) (any inconsistency between general allegations of material facts in Complaint, and specific facts revealed by the Exhibit attached to it has the effect of neutralizing each allegation and rendering the pleading objectionable). Although the Court is aware that the Statute of Limitations is described as an Affirmative Defense under ...

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6 cases
  • Keller v. Reed
    • United States
    • Florida District Court of Appeals
    • 26 Agosto 1992
    ...trier of fact. Flanagan; Aprile v. Suncoast Schools Fed. Credit Union, 596 So.2d 1290 (Fla. 2d DCA1992); Hawkins v. Washington Shores Savings Bank, 509 So.2d 1314 (Fla. 5th DCA1987). The appellants contend that they were not aware of the appellee's negligence until 1989 and have asserted fa......
  • Williams v. Bear Stearns & Co.
    • United States
    • Florida District Court of Appeals
    • 23 Diciembre 1998
    ...of discovery4 must be taken as true in ruling on a motion to dismiss based on the statute of limitations. Hawkins v. Washington Shores Sav. Bank, 509 So.2d 1314 (Fla. 5th DCA 1987). The amended complaint alleges both that NHL knew of losses in July 1993 and that the facts giving rise to fra......
  • Brock v. Associates Finance, Inc., 92-3245
    • United States
    • Florida District Court of Appeals
    • 20 Octubre 1993
    ...true as to the issue of when the fraud was (or should have been) discovered for limitations purposes. See Hawkins v. Washington Shores Sav. Bank, 509 So.2d 1314 (Fla. 5th DCA 1987). The trial court based its conclusion that appellant either knew or should have known of sufficient facts to p......
  • FRESH CAPITAL v. BRIDGEPORT CAPITAL
    • United States
    • Florida District Court of Appeals
    • 26 Enero 2005
    ...as grounds for a motion to dismiss for failure to state a cause of action. See Fla. R. Civ. P. 1.110(d); Hawkins v. Washington Shores Sav. Bank, 509 So.2d 1314, 1315 (Fla. 5th DCA 1987). "When considering the merits of a motion to dismiss, a court's gaze is limited to the four corners of th......
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