Wittington Condominium Apartments, Inc. v. Braemar Corp., 74--424

• Decision Date: 23 May 1975
• Docket Number: No. 74--424,74--424
• Citation: 313 So.2d 463
• Parties: WITTINGTON CONDOMINIUM APARTMENTS, INC., et al., Appellants, v. BRAEMAR CORPORATION, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 463

313 So.2d 463

WITTINGTON CONDOMINIUM APARTMENTS, INC., et al., Appellants, v. BRAEMAR CORPORATION, etc., et al., Appellees.

No. 74--424.

District Court of Appeal of Florida, Fourth District.

May 23, 1975.

Rehearings Denied June 26, July 2, 1975.

H. Winston Hathaway of Lavalle Wochna & Rutherford, P.A., Boca Raton, for appellants.

Perry S. Itkin of Kirsch & Mills, P.A., Fort Lauderdale, and Joseph P. Averill of Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellees.

MAGER, Judge.

This is an appeal by Wittington Condominium Apartments, Inc. and Victor P. Matthews, individually and as president of Wittington Condominium Apartments, Inc., plaintiffs below, from a final judgment on the pleadings entered on behalf of Braemar Corporation one of several defendants below.

The plaintiffs filed a complaint containing numerous counts seeking money damages and injunctive relief as occasioned by the alleged improper design and construction of the Wittington Condominium Apartments by Braemar (the developer) and other named defendants. The suit was instituted by the Wittington Condominium Association in its individual capacity joined by Victor Matthews in his individual and corporate capacity as president of the Wittington Condominium Association. In addition, Victor Matthews also alleged that the suit was being maintained by him as a class action for other condominium unit owners. ¹

The complaint, which alleged improper design and construction of the Wittington Condominium contrary to plans, specifications and representations made by Braemar and its employees, sets forth various alleged defects in the common elements and seeks recovery predicated upon various legal theories such as, implied warranty; negligent construction; breach of contract; fraud and deceit; breach of a fiduciary duty.

Answers were filed by Braemar and other defendants in which the material allegations of the complaint were denied. Subsequently, various motions were filed including motions for judgment on the pleadings, motion to strike, motion to dismiss, and motion for summary judgment. The primary thrust of the motions was directed at the propriety of maintaining a representative or class action. Ultimately, the court ruled Only on the motion for judgment on the pleadings entering a final judgment thereon concluding that 'the actions as presented by plaintiffs herein do not properly lie . . .' citing authorities dealing with representative and class actions.

Based upon a review of the case law and pertinent texts and authorities it is our opinion that the entry of a final judgment on the pleadings was erroneous. See Fla. Civil Practice Before Trial, sec. 13.14.

In Bradham v. Hayes Enterprises, Inc., First District Court of Appeal, 306 So.2d 568 opinion filed January 23, 1975, the court observed:

'. . . A motion to dismiss and a motion for judgment on the pleadings are not the same and are not governed by the same rules of procedure. (Davis v. Davis, Fla.App.1st 1960, 123 So.2d 377) A motion for judgment on the pleadings must be determined On the pleadings. (For a thorough discussion on the meaning of the term 'pleadings' see Metcalf v. Langston, Fla.App.1st 1974, 296 So.2d 81, cert. den., Sup.Ct.Fla.1974, 302 So.2d 414) The purpose of the motion for judgment on the pleadings is to permit a trial judge to examine the allegations of the bare pleadings and determine whether there are any issues of fact Based thereon. If the bare pleadings reveal that there are no facts to be resolved by a trier of facts then the trial judge is authorized to enter a judgment based upon the uncontroverted facts appearing from the pleadings as applied to the applicable law. Needless to say, if the pleadings reveal issues of fact then a judgment on the pleadings may not be properly entered.' (Emphasis added.)

It is further pointed out in Butts v. State Farm Mutual Automobile Ins. Co., Fla.App.1968, 207 So.2d 73, 75:

'. . . Upon a hearing on defendant's motion for a judgment on the pleadings, after defendant has answered, matters outside the pleadings may not be considered. (citations omitted) In considering such a motion, All material allegations of the opposing party's pleading are taken as true, and all of the movant's allegations which have been denied are taken as false. Since the answer requires no responsive pleading, all allegations contained therein are deemed denied. (citations omitted) The test to be applied in this instance is the same as if defendant were to have moved to dismiss the complaint for failure to state a cause of action. . . .' (Emphasis added.)

In this connection it was stated in Davis v. Davis, Fla.App.1960, 123 So.2d 377, 380:

'Although the test to be applied in disposing of a motion for judgment or decree on the pleadings is the same as in disposing of a motion to dismiss for failure to state a cause of action, the office of the two different type motions is entirely different and should not be confused. If a motion for final decree on the pleadings is granted, the decree entered pursuant thereto is a final adjudication on the merits of the cause. If a motion to dismiss a complaint is granted, the unsuccessful party is privileged to seek leave of court for permission to file an amended pleading in which the defects of the dismissed pleading may be supplied by additional allegations.' (Emphasis added.)

Measured by the foregoing principles, a thorough examination of the pleadings reflects the existence of disputed questions of fact and allegations in the complaint the truthfulness of which are admitted for the purpose of the motion raising issues of fact for the court's determination precluding the entry of a judgment on the pleadings. It is difficult to conclude that notwithstanding the plaintiffs' allegations of breach of implied warranty, negligent construction and breach of contract (which for the purpose of the motion are taken as true), the defendants are entitled, as a matter of law, to a judgment on the merits 'without regard to what the findings may be on the facts on which issue is joined'. AIA Mobile Home Park, Inc. v. Brevard County, Fla.App.1971, 246 So.2d 126. By the very nature of the defendant's motion and the admissions made thereby regarding the allegations in the complaint a judgment on the pleadings cannot be granted.

If, in reality, the defendants seek to challenge and defeat the capacity of the plaintiffs to maintain a particular action, it cannot be accomplished through the vehicle of a motion for judgment on the pleadings. As Rule 1.120(a), FRCP, clearly states:

'(a) Capacity. It is not necessary to aver the capacity of a party to sue or to be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the Capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so By specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge.' (Emphasis added.)

The 'specific negative averment' referred to in Rule 1.120 may be reflected in a responsive pleading (answer) or presumably in what might be described as a 'speaking motion' whether denominated as a motion to dismiss, a motion to drop improperly joined parties, or a motion to strike. See Fla. Civil Practice Before Trial, Sections 11.4 and 11.5, published by Continuing Legal Education of The Florida Bar. See also Equitable Life Assurance Society of United States v. Fuller, Fla.App.1973, 275 So.2d 568; Wilson v. First National Bank of Miami Springs, Fla.App.1971, 254 So.2d 362; Gordon Finance, Inc. v. Belzaguy, Fla.App.1968, 216 So.2d 240. The improper joinder of parties or the insufficiency of the pleadings to allege the proper representative capacity is not a basis for a Final dismissal of the action or a final adjudication on the merits, which would be the resulting effect of a final judgment entered pursuant to a motion for judgment on the pleadings, see Davis v. Davis, supra; at least not until an opportunity to amend has been granted and there is an inability to comply therewith. See Equitable Life Assurance Society v. Fuller, supra; Wilson v. First National Bank of Miami Springs, supra; and Gordon Finance, Inc. v. Belzaguy, supra; see also Hargraves v. Costin, First District Court of Appeal, Case Nos. V--57, W--324 and W--336 opinion filed February 13, 1975 and Rosenwasser v. Frager, Third District Court of Appeal, 307 So.2d 865 opinion filed February 4, 1975.

In examining the complaint we cannot conclude that it is totally deficient insofar as the standing or capacity of the named parties are concerned. The plaintiffs' effort to take a 'shotgun' approach in the description and joinder of party-plaintiffs, although somewhat cumbersome, is not fatal so as to preclude at least One of the named plaintiffs from being able to maintain a cause of action against the defendants. Cf. Harrell v. Hess Oil and Chemical Corporation, Fla.1973, 287 So.2d 291. The net effect of the final judgment on the pleadings is a judicial determination that None of the named parties has any cause of action against the defendant developer and others resulting from alleged negligent design and construction; we cannot subscribe to the broad legal effect this determination would have based upon the pleadings in this case.

Considering, first, the status of the Wittington Condominium Association we do not perceive of any valid legal impediment to the Association's ability to maintain a suit, Individually, against the defendants. Section 711.12, F.S., of the 'Condominium Act' provides in part as follows:

'(1) The operation of the condominium shall be By the association, the...