Temples v. Florida Indus. Const. Co., Inc., 74--531
| Decision Date | 02 April 1975 |
| Docket Number | No. 74--531,74--531 |
| Citation | 310 So.2d 326 |
| Parties | H. E. TEMPLES, d/b/a H. E. Temples Steel Erectors, Appellant, v. FLORIDA INDUSTRIAL CONSTRUCTION CO., INC. and Jim Walter Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Robert R. McInvale, Tampa, for appellant.
Michael Sierra, Tampa, for appellees.
Appellant/plaintiff, H. E. Temples, hereafter appellant, timely appeals from the order of the Circuit Court of Hillsborough County granting a motion to dismiss appellant's complaint filed by appellee/defendant, Florida Industrial Construction Co., Inc., hereafter appellee.
The sole issue for our consideration on appeal is whether the order of dismissal was properly rendered by the trial court. Appellant entered into a written subcontract (copy of which was attached to the bill of complaint) to do structural work on a building situate on property of the Jim Walter Corporation. During the course of the work dispute arose between the parties culminating in appellant's filing suit against appellee and Jim Walter Corporation. In Count I of the complaint appellant sought damages arising from the breach of contract and for certain extra work performed in behalf of the appellee. In Count II appellant sought enforcement of a mechanics lien. Appellee moved to dismiss the complaint on the ground that the appellant had executed a waiver of lien, copy of which lien waiver was attached to the motion to dismiss. Jim Walter Corporation filed its motion to dismiss alleging the failure of appellant to comply with the applicable statutory provisions of the Mechanics Lien Law. Appellee filed a request for admissions. Before appellant answered the request, the court granted the motion to dismiss which had been filed by Jim Walter Corporation. 1 The hearing on appellee's motion to dismiss was continued by the court to a later date. After the appellant answered appellee's request for admissions, appellee then filed a second motion to dismiss and alleged two affirmative defenses not apparent on the face of the complaint: (1) Appellant's failure to comply with the conditions precedent before filing the instant action, i.e., failure to pursue the contractual remedy of arbitration; (2) Appellant's execution of a waiver of lien.
After full hearing on the motion to dismiss, the trial court ruled that '. . . having considered the pleadings on file, the Requested Admissions, and the attachments to the pleadings, and being otherwise advised in the premises, it is therefore, ORDERED . . . that Plaintiff's Complaint be, and is hereby dismissed with prejudice.'
It is well entrenched in our jurisprudence that on a motion to dismiss the movant (appellee) admits as true all the material facts well pleaded. It is axiomatic that in ruling upon a motion to dismiss a complaint the issue before the court is whether the complaint states a valid cause of action. Our examination of the complaint filed in the instant case shows it states a cause of action. Therefore, under the Rules of Civil Procedure, the decision of the trial court in considering matters not disclosed by the complaint constitutes reversible error and we reverse, for unless an affirmative defense appears on the face of a prior pleading, which we submit does not appear in the instant case, it must be raised by pleading, rather than by motion. See RCP 1.110(d) and RCP 1.140(b). 2
The trial court, as stated above, in its order dismissing the complaint, considered the request for admissions and matters in addition to the complaint. Appellant's answers to the admissions requested by appellee prior to filing its answer to the complaint should have no bearing on the court's...
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...trial court, on a motion to dismiss, to consider matters outside of the complaint and exhibits thereto. Temples v. Florida Indus. Constr. Co., 310 So.2d 326, 327 (Fla. 2d DCA 1975). Even if dismissal were proper, denial of leave to amend was not. See Conklin v. Cohen, 287 So.2d 56, 60 (Fla.......
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Mueller v. The Florida Bar
...was bound to do, the truth of the well-pleaded allegations, including Gross's authorship of the release. Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla.2d DCA 1975). Precedent indicates an inclination to give a broad definition to the term "scope of office" and its synon......
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Ellerson v. Moriarty
...is confined to the four corners of the complaint and must take as true all well-pleaded, material facts. Temples v. Fla. Indus. Constr. Co., 310 So. 2d 326 (Fla. 2d DCA 1975) ; Gennaro v. Leeper, 313 So. 2d 70 (Fla. 2d DCA 1975). DeMartino v. Simat , 948 So. 2d 841, 843 (Fla. 2d DCA 2007). ......
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Holland v. Anheuser Busch, Inc.
...has held that "[a] motion to dismiss may not act as a substitute for a motion for summary judgment." Temples v. Florida Industrial Construction Co., 310 So.2d 326, 328 (Fla. 2d DCA 1975). On a motion to dismiss for failure to state a cause of action, a trial court is restricted to a conside......