Hochman v. Lazarus Homes Corp.
| Decision Date | 25 November 1975 |
| Docket Number | No. 74--1733,74--1733 |
| Citation | 324 So.2d 205 |
| Parties | Gary D. HOCHMAN and Elyse S. Hochman, Appellants, v. LAZARUS HOMES CORPORATION, a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Reiseman & Buchbinder, Miami, for appellants.
Ser & Keyfetz, Blatt, Udell, Alterman & Lasky, Freidin & Goldfarb, Miami, for appellee.
Before BARKDULL, C.J., HENDRY, J., and PIERCE, WILLIAM C., Associate Judge.
This is an appeal by Gary D. Hochman and Elyse S. Hochman, plaintiffs in the trial court, from a final judgment dismissing with prejudice an amended complaint for damages.
The amended complaint alleges that in June of 1973, the Hochmans entered into a deposit receipt agreement with the defendant, Lazarus Homes Corporation, whereby Larazus Homes was to sell a single family residence to the Hochmans for the sum of $51,778.00. The agreement provided that the Hochmans would assume a mortgage of $40,642.40 placed by Lazarus Homes, bearing interest at 7.5 per cent per annum. Lazarus Homes obtained a mortgage on the property in the principal sum of $40,600.00, but at an interest rate of 8.5 per cent per annum. The complaint further alleges that the transaction was closed with the specific understanding that the Hochmans reserved the right to file an action for damages resulting from the difference in interest rates. The damages sought in the amended complaint are the additional interest payments and the diminished value of the property.
Lazarus Homes Corporation filed a motion to dismiss stating as some of the grounds that the amended complaint fails to state a cause of action; that the elements of damage were improper, and that the contract was accepted and the transaction was consummated and, therefore, the plaintiffs have waived their rights to rescind the contract. The motion was granted and the trial court entered its order dismissing the amended complaint with prejudice and final judgment in favor of the defendant. The order contains no grounds or reasons for dismissal.
On appeal, the Hochmans contend that the trial court erred in dismissing the amended complaint and in entering final judgment for the defendant. We agree. The rule is well established that, upon a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true. Those allegations are then reviewed in light of the applicable...
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