N.E. at West Palm Beach, Inc. v. Horowitz, 84-1793
| Decision Date | 04 June 1985 |
| Docket Number | No. 84-1793,84-1793 |
| Citation | 471 So.2d 570,10 Fla. L. Weekly 1365 |
| Parties | 10 Fla. L. Weekly 1365, 10 Fla. L. Weekly 1679 N.E. AT WEST PALM BEACH, INC., a Florida corporation, Appellant, v. Arthur HOROWITZ, individually and as Director and Trustee of West Restaurant Corporation, a dissolved Florida corporation, West Restaurant Corporation, a dissolved Florida corporation, and 1444 Restaurant Corporation, a Florida corporation, jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
Bender, Bender & Chandler and James Chandler, Coral Gables, for appellant.
Joe N. Unger; Smith & Mandler, Miami, for appellees.
Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
Plaintiff/appellant, occupier of business premises under a sublease, alleged in a complaint that the defendant-sublessor, with whom he has a fiduciary relationship, assigned the major lease pursuant to a provision in the agreement (paragraph 30(e)) which gave the assignee the right to terminate the sublease. According to the sublease, if it were terminated pursuant to that provision, plaintiff, if in good standing, would be entitled to compensation based on a percentage of the gross sales price of the premises under the major lease. It was further alleged that the new assignee terminated the sublease pursuant to paragraph 30(e) and forced plaintiff to move to less desirable space under a new sublease agreement without compensation. The loss under count two of the complaint was allegedly attributable to the sublessor's breach of a fiduciary duty to inform plaintiff of the fact and terms of the major lease assignment, which information would have affected plaintiff's negotiations with the assignee as to the new sublease.
The purpose of a motion to dismiss is to ascertain whether a plaintiff has alleged a good cause of action and the court must confine itself strictly to the four corners of the complaint. It is inappropriate to consider defendants' affirmative defenses, or the sufficiency of the evidence which the plaintiff is likely to produce. Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So.2d 1171 (Fla. 3d DCA 1981). Looking strictly to the four corners of the complaint it cannot be said that a cause of action is not stated against the defendants. Nottage v. American Express Co., 452 So.2d 1066 (Fla. 3d DCA 1984).
Reversed and remanded.
ON MOTION FOR REHEARING OR CLARIFICATION
In clarification of the opinion...
To continue reading
Request your trial
-
De Ribeaux v. Del Valle, 88-23
...The trial court must confine itself to the four corners of the complaint in making its determination. N.E. at West Palm Beach, Inc. v. Horowitz, 471 So.2d 570 (Fla.3d DCA 1985). It is inappropriate to weigh the sufficiency of the plaintiff's evidence or to consider the merits of the defenda......
-
Assad v. Mendell
...these allegations as true without regard to the sufficiency of evidence the Assads were likely to produce. N.E. at West Palm Beach, Inc. v. Horowitz, 471 So.2d 570 (Fla. 3d DCA 1985); Raney v. Jimmie Diesel Corp., 362 So.2d 997 (Fla. 3d DCA 1978). Based upon these allegations, the Assads' c......
-
Reinman, Inc. v. Preferred Mut. Ins. Co., 86-1701
...disputations of the well-pleaded allegations in the complaint, on the agency issue, are irrelevant. See N.E. at West Palm Beach v. Horowitz, 471 So.2d 570 (Fla. 3d DCA 1985) (improper to consider defenses or the sufficiency of the evidence which a party is likely to produce in reviewing whe......
-
Cohen v. Spizz, s. 85-2301
...(Fla. 3d DCA 1979); Delacruz v. Peninsula State Bank, 221 So.2d 772, 776 (Fla. 2d DCA 1969); see also N.E. at West Palm Beach, Inc. v. Horowitz, 471 So.2d 570, 570-71 (Fla. 3d DCA 1985). Third, this reversal shall be without prejudice to the defendants' subsequent filing of a motion for jud......