Palumbo v. Moore
| Decision Date | 16 February 2001 |
| Docket Number | No. 5D00-871.,5D00-871. |
| Citation | 777 So.2d 1177 |
| Parties | John PALUMBO, Appellant, v. Jon A. MOORE, Sr. and Jon A. Moore, Jr., et al., Appellees. |
| Court | Florida District Court of Appeals |
John Palumbo, Orlando, pro se.
No appearance for Appellees.
Appellant, John Palumbo (Palumbo), appeals a final order dismissing with prejudice his amended cross-claim and third-party complaint against Appellees, Jon A. Moore, Sr. (Moore, Sr.) and Jon A. Moore, Jr. (Moore, Jr.), respectively. We reverse. Palumbo and the Moores were shareholders in JMJ Building Company (JMJ). JMJ obtained financing from United Southern Bank (USB), and Palumbo personally guaranteed the loans. When JMJ defaulted on its obligations, USB brought suit seeking, among other things, to hold Palumbo liable on the personal guarantees he executed.
Palumbo responded by filing an amended cross-claim against Moore, Sr. and a third-party complaint against Moore, Jr. seeking declaratory relief and damages. In his action for declaratory relief, Palumbo sought to determine if, based on a "Memo of Agreement" between Palumbo and the Moores dated August 12, 1997,1 the Moores would be obligated to contribute to or indemnify Palumbo for the USB judgment. Palumbo's second claim was for damages based on his assertion that he was fraudulently induced by the Moores into executing the October, 1997 guarantee to USB. The Moores filed a motion to dismiss which was subsequently granted with prejudice by the trial court.
Generally, the standard of review of an order dismissing a complaint with prejudice is de novo. Abruzzo v. Haller, 603 So.2d 1338, 1339 (Fla. 1st DCA 1992). However, when dismissing a count in a complaint seeking declaratory judgment, the trial court's ruling is accorded great deference. Travelers Ins. Co. v. Emery, 579 So.2d 798, 800 (Fla. 1st DCA 1991). Therefore, as to the dismissal of the declaratory relief claim, the standard of review is whether the trial court abused its discretion. Abruzzo, 603 So.2d at 1339. A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 383 (Fla. 4th DCA 1999).
To be entitled to declaratory relief, a party must show he is in doubt as to some right or status and that he is entitled to have such doubt removed. § 86.021, Fla. Stat. (2000); Kelner v. Woody, 399 So.2d 35, 37 (Fla. 3d DCA 1981). The standard for testing the sufficiency of a declaratory judgment complaint is found in May v. Holley, 59 So.2d 636, 639 (Fla.1952):
Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is bona fide, actual, present practical need for declaration; that the declaration should deal with present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of complaining party is dependent on fact or law applicable to facts; that there is some person or persons who have, or reasonably may have actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely giving of legal advice by the courts or the answer to questions propounded form curiosity.
See also 19 Fla. Jur.2d Declaratory Judgments § 9 (2000). Declaratory judgments are not unusual in contract cases. See CNA Int'l Reinsurance Co., Ltd. v. Phoenix, 678 So.2d 378 (Fla. 1st DCA 1996)
; Miami Dolphins, Ltd. v. Genden & Bach, P.A., 545 So.2d 294 (Fla. 3d DCA 1989). In the instant case, it appears that (1) USB obtained a judgment against Palumbo based on his personal guarantee, and (2...
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