BOYCE R. "BILL" MOUDY, APPELLANT,
v.
SOUTHLAND DISTRIBUTING COMPANY OF ST. PETERSBURG, INC., A FLORIDA CORPORATION, AND BERNARD KANNER, APPELLEES
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The court held that the dismissal of count V, alleging fraud, was appealable but should be without prejudice, allowing the appellant another opportunity to amend.
[1] A dismissal of counts that are interrelated with and arise out of the same factual background as counts remaining pending against the same parties is not appealable at th…
[2] A dismissal of a count alleging a separate and distinct cause of action, not interrelated with or involving the same transaction as other counts, may be appealed.
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Join FLexlaw to unlock all legal intelligenceAppellant appealed the dismissal of several counts of his complaint. Counts I and II were interrelated with pending counts, making their dismissal non…
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GRIMES, Acting Chief Judge.
Appellant seeks to appeal the dismissal with prejudice of counts I, II and V of his five count second amended com plaint. The dismissal of counts I and II is not appealable at this time because those counts are interrelated with and arise out of the same factual background as counts III and IV which remain pending against the same parties. North Indiatlantic Homeowners Ass’n v. Bogue, 390 So. 2d 74 (Fla. 5th DCA 1980). However, the dismissal of count V may be appealed because it alleges a separate and distinct cause of action in fraud not interrelated with or involving the same transaction alleged in the other four counts. Mendez v. West Flagler Family Ass’n, 303 So. 2d 1 (Fla.1974).
In dismissing the three counts, the trial court stated that they did not contain certain allegations which the court had noted as essential to stating a cause of action in an order dismissing a prior complaint. However, such allegations had nothing to do with the sufficiency of count V which was not filed until a later date and which is predicated upon a totally different theory. Upon the premise that a proper ruling, even if based on the wrong reason, should be affirmed, Stuart v. State, 360 So. 2d 406 (Fla.1978), we have reviewed the sufficiency of count V and find it wanting. The circumstances constituting the alleged fraud are not pled with the particularity necessary to state a cause of action. See Fla.R.Civ.P. 1.120(b). Nevertheless, since count V first appeared in the second amended complaint, we believe that appellant should be given another opportunity to state a cause of action. Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So. 2d 90 (Fla. 2d DCA 1980).
The appeal is dismissed as it relates to counts I and II. The order with respect to count V is affirmed but the dismissal shall be without prejudice. The case is remanded for an order permitting appellant a reasonable length of time within which to file an amended count V.
OTT and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253 (Fla. 2d DCA 1994)…ause Mettler has had prior opportunities to plead a specific claim for fraud, if it cannot allege the specifics of fraud in the next amended complaint, any counts based thereon should be dismissed with prejudice. Moudy v. Southland Distributing Co., 452 So. 2d 1045 (Fla. 2d DCA 1984). [*257] Additionally, I am unconvinced that Mett-ler has alleged a duty to disclose in support of its theory of fraudulent concealment. Admittedly, Ellen Tracy might have had superi- or knowledge of plans to sell its clothing at d…
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Belvin v. State, 585 So. 2d 1103 (Fla. 2d DCA 1991)…firmance is required when the ruling is correct, albeit for the wrong reasons. Stuart v. State, 360 So. 2d 406 (Fla.1978); U.S. Home Corp. v. Suncoast Util., 454 So. 2d 601 (Fla. 2d DCA 1984); Moudy v. Southland Distrib. Co. of St. Petersburg, Inc., 452 So. 2d 1045 (Fla. 2d DCA 1984). The record irrefutably establishes that Officer Castro was able to properly conclude that appellant was within the curti-lage of the premises being searched when Officer Castro observed appellant standing two to six feet from th…
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Morgan v. Lugene Blancher, 489 So. 2d 1217 (Fla. 2d DCA 1986)…ame transaction. See Mendez v. West Flagler Family Association, Inc., 303 So. 2d 1 (Fla. 1974). Therefore, the dismissal of count one with prejudice cannot be a final order if counts two and three remain pending. Moudy v. Southland Distributing Co., 452 So. 2d 1045 (Fla. 2d DCA 1984). An order of dismissal with leave to amend is not appealable because it is a nonfinal order. Bishop v. Kelly, 404 So. 2d 1149 (Fla. 5th DCA 1981). If the order dismissing counts two and three with leave to amend is a nonfinal orde…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- Alphonso Stuart v. State, 360 So. 2d 406 (Fla. 1978)
- Highlands Cnty. Sch. Bd. v. K. D. Hedin Constr., Inc., 382 So. 2d 90 (Fla. 2d DCA 1980)
- Winn-Dixie Stores, Inc. v. Codomo, 390 So. 2d 74 (Fla. 3d DCA 1980)