Maciejewski v. Holland, 83-443
| Citation | 441 So.2d 703 |
| Decision Date | 07 December 1983 |
| Docket Number | No. 83-443,83-443 |
| Parties | Diana N. MACIEJEWSKI, Appellant, v. William M. HOLLAND, Jr., P.A., William M. Holland, Jr., as President of William M. Holland, Jr., P.A., and individually, Appellees. |
| Court | Florida District Court of Appeals |
J. Scott Taylor, The Legal Center, Tampa, for appellant.
Katherine B. Huppuch of William M. Holland, Jr., P.A., Tampa, for appellees.
The appellant, Diana N. Maciejewski, has appealed the trial court's dismissal of her complaint. We find that the complaint states a cause of action for declaratory relief and accordingly reverse.
The controversy between the parties arose out of the appellees' representation of appellant in a dissolution of marriage action. After the dissolution action was concluded, the appellant filed a complaint seeking a declaratory judgment concerning the validity of a promissory note and mortgage she had given to the appellees.
The complaint alleged that the appellee, William M. Holland, Jr., individually and on behalf of the appellee, William M. Holland, Jr., P.A., caused the appellant to execute the promissory note and mortgage in question. It further alleged that the appellant did not remember executing the instruments, copies of which were attached to the complaint. Moreover, because of certain conduct on the part of the appellees, or in the alternative, due to the appellant's state of emotional distress at the time the instruments were executed, the appellant should not be bound by them.
After the appellees' motion to dismiss the complaint for failure to state a cause of action was granted, and the appellant announced that she did not desire leave to amend, the action was dismissed with prejudice, and this appeal timely followed.
In considering a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true, and the court is not permitted to speculate as to whether the allegations will ultimately be proven. Arnold v. Weck, 388 So.2d 269 (Fla. 4th DCA 1980). In reviewing the appellant's complaint in light of this rule, we find it states a cause of action for declaratory relief.
We recognize that the declaratory judgment act is not to be used as a tool to advise attorneys as to the proper path to pursue. Kelner v. Woody, 399 So.2d 35 (Fla. 3d DCA 1981). However, the existence of another remedy does not preclude a judgment for declaratory relief. § 86.111, Fla.Stat. ...
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...RCAF correctly points out, claims for damages and declaratory relief are consistent and cumulative remedies. See Maciejewski v. Holland, 441 So.2d 703, 704 (Fla. 2d DCA 1983) ("The existence of another remedy does not preclude a judgment for declaratory relief."); see also Thomas v. Cilbe, ......
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...was raised on summary judgment, directed verdict and motion for new trial, and was consistently denied. 7. See Maciejewski v. Holland, 441 So.2d 703, 704 (Fla. 2d DCA 1983)(all material allegations of the complaint are taken as true; court is not allowed to speculate as to whether allegatio......
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Brock v. Bowein
...DCA 2000). “[T]he court is not permitted to speculate as to whether the allegations will ultimately be proven.” Maciejewski v. Holland, 441 So.2d 703, 704 (Fla. 2d DCA 1983). “[A] motion to dismiss should not be granted on the basis of an affirmative defense ... unless that defense is estab......
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Cook v. Sheriff of Collier County, s. 90-01099
...taken as true, and the court is not permitted to speculate as to whether the allegations will ultimately be proven. Maciejewski v. Holland, 441 So.2d 703 (Fla. 2d DCA 1983). We agree with the appellee's contention that the sheriff is generally not under a common law or statutory duty to rep......