Lowery v. Lowery, No. 94-00403
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | RYDER |
| Citation | 654 So.2d 1218 |
| Parties | 20 Fla. L. Weekly D1114 Thomas A. LOWERY, Appellant, v. Richard J. LOWERY, Margaret Lowery and The Ohio Casualty Insurance Company, Appellees. |
| Decision Date | 03 May 1995 |
| Docket Number | No. 94-00403 |
Page 1218
v.
Richard J. LOWERY, Margaret Lowery and The Ohio Casualty
Insurance Company, Appellees.
Second District.
Thomas A. Lowery, pro se.
George I. Sanchez, Palm Harbor, for appellees.
RYDER, Acting Chief Judge.
Thomas A. Lowery seeks review of the trial court's dismissal of his suit with prejudice. We reverse and remand to the lower court with directions to reinstate his complaint.
Mr. Lowery filed a pro se complaint against the appellees, alleging that his brother Richard fraudulently obtained or mismanaged his father's property, both before the father's death and after his death, as personal representative of the estate. He contended that Margaret Lowery, Richard's wife, overcharged his deceased father for nursing services. Ohio Casualty Insurance Company was named as a defendant only because it provided the personal representative's bond for Richard.
Page 1219
The defendants filed motions to dismiss the complaint. Richard's motion was the most detailed. He asserted seven grounds for dismissal, which we summarize as follows: (1) failure to state a cause of action; (2) the bar of section 733.901(5), Florida Statutes (1991); (3) failure to seek revocation of the order of discharge in the probate case; (4) laches; (5) the deeds attached to the motion to dismiss negated his cause of action; (6) the fact that Thomas was not entitled to real estate deeded to Richard before their father's death; and (7) failure to provide documentation of the father's alleged incompetency before his death. Margaret's and Ohio Casualty's motions to dismiss each alleged the complaint failed to state a cause of action and Ohio Casualty's motion additionally asserted lack of jurisdiction. The trial court dismissed the complaint, with prejudice, on the grounds that res judicata barred relitigation of issues previously decided in the probate of the father's estate.
We must again note that a motion to dismiss is not to be used as a substitute for a motion for judgment on the pleadings or a motion for summary judgment. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994). A motion to dismiss is designed to test the legal sufficiency of a complaint, not to determine issues of fact. Holland. The Florida Rules of Civil Procedure limit the...
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Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., No. 1D18-5158
...the complaint with prejudice." Id. at 537. That is precisely what the trial court did in the present case. See also Lowery v. Lowery , 654 So. 2d 1218, 1219 (Fla. 2d DCA 1995) ("We must again note that a motion to dismiss is not to be used as a substitute for a motion for judgment on the pl......
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Davis By and Through Davis v. Bell, No. 97-00244
...determine issues of fact. See Davidson, 674 So.2d at 860. It is not a substitute for a motion for summary judgment. See Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA 1995). The trial court abused its discretion when it dismissed the case against Bell based on its resolution of a factu......
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Davidson v. Iona-McGregor Fire Protection and Rescue Dist., IONA-M
...at 408. A motion to dismiss is designed to test the legal sufficiency of a complaint, not to determine fact issues. Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA 1995); Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994). The dismissal cannot be sustained on the basis st......
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Wilson v. News-Press Pub. Co., No. 98-03481.
...should not be used as a substitute for a motion for summary judgment or a motion for judgment on the pleadings. See Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA Reversed and remanded. CAMPBELL, A.C.J., and STRINGER, J., Concur. -------- Notes: 1. When the News-Press published the art......
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Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc., No. 1D18-5158
...the complaint with prejudice." Id. at 537. That is precisely what the trial court did in the present case. See also Lowery v. Lowery , 654 So. 2d 1218, 1219 (Fla. 2d DCA 1995) ("We must again note that a motion to dismiss is not to be used as a substitute for a motion for judgment on the pl......
-
Davis By and Through Davis v. Bell, No. 97-00244
...determine issues of fact. See Davidson, 674 So.2d at 860. It is not a substitute for a motion for summary judgment. See Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA 1995). The trial court abused its discretion when it dismissed the case against Bell based on its resolution of a factu......
-
Davidson v. Iona-McGregor Fire Protection and Rescue Dist., IONA-M
...at 408. A motion to dismiss is designed to test the legal sufficiency of a complaint, not to determine fact issues. Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA 1995); Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994). The dismissal cannot be sustained on the basis st......
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Wilson v. News-Press Pub. Co., No. 98-03481.
...should not be used as a substitute for a motion for summary judgment or a motion for judgment on the pleadings. See Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA Reversed and remanded. CAMPBELL, A.C.J., and STRINGER, J., Concur. -------- Notes: 1. When the News-Press published the art......