AL FEUER

v.

ANA ORELLANA

BLOCH, J.

Plaintiff/Appellant Al Feuer, pro se, appeals from an order dismissing his small claims case "for failure to state a cause of action." We reverse.

Proceedings Below

Feuer, who was also pro se below, filed a typed, three-paged and sequentially paragraphed "Statement of Claim" in the County Court. The Statement of Claim was sworn and notarized. Feuer alleged that the Defendant/Appellee Ana Orellana, owned certain dogs (which were depicted in photographs attached as exhibits); that Orellana had a legal duty to ensure that her dogs were restrained; and that she breached that duty by "negligently allowing her dogs to escape her property." Feuer, who was riding a bike at the time, further alleged he was attacked by the dogs, causing him to lose control and fall to the ground and to suffer injuries and ==PAGE 1== damages. Feuer alleged the sole cause of his damages "was the Defendant's negligent breach of her duty." In pleading his claim Feuer also asserted that the "Defendant is absolutely liable for Plaintiff's damages" and cited and quoted from Section 767.01 of the Florida Statutes which provides that "owners of dogs shall be liable for any damage done by their dogs to a person[.]"

The case was set for pre-trial conference on August 16, 2012. On the same date, the lower court entered the order on appeal which read: “The instant case is dismissed for failure to state a cause of action." The order does not refer to any antecedent motion to dismiss, nor have we found one in the record on appeal. No transcript of the proceedings below was furnished to this court, and it appears that such proceedings were not recorded.

Issues on Appeal

On appeal Feuer raises a number of issues. Most of these issues concern the assertion that at the pre-trial conference the lower court judge improperly spoke in Spanish about the case to the defendant Orellana, who was unsworn at the time, and that from those discussions the court announced that it believed the defendant's assertion that she did not own the dogs, and therefore that the court would enter the order dismissing the case. Feuer asserts that the lower thus received unsworn testimony from defendant, which could not serve to defeat the sworn allegations in his Statement of Claim, and further that such testimony was ex parte as to Feuer, who does not speak Spanish. Feuer also argues that the lower court erred by denying him the opportunity to conduct discovery or to amend his Statement of Claim.

As noted, there was no transcript of the proceedings filed. Moreover, though required by the Rules of Appellate Procedure, Feuer fails to cite to the record in his initial brief. See Fla. R. App. P. 9.210(b)(3) ("References to the appropriate volume and pages of the record or transcript shall be made.").

After Orellana failed to file an answer brief in this Court, and noting the lack of any response, Feuer filed in this Court several motions to "Grant Relief Requested in Initial Brief" -- the first on December 27, 2012.¹ The motion was denied, by Order dated January 6, 2014, but in N 1 In addition to the December 27, 2012, motion, nearly identical motions were later filed on May 6, 2014, and January 26, 2015, respectively, after Orellana continued to fail to file an answer brief. Though all three motions were denied, in each case the Administrative Judge also ordered the clerk to set the matter for oral argument. The Clerk apparently overlooked those directives until this last time when it was then assigned to this panel. This seems to account for the lengthy time this case has resided in this Court.

==PAGE 2== that order, the appellee, Orellana, was directed to file her answer brief within twenty days. Orellana has filed no answer brief and failed to appear at oral argument.

Analysis

Most of the issues raised on appeal are fact-intensive and fact-dispositive. Unfortunately, there is absolutely no record for this Court to review which would allow it to make any determination as to such issues, or for that matter, whether the factual assertions are supported at all. Normally, this would preclude appellate review. As the Florida Supreme Court has explained:

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Consequently, this Court is in no position rule upon the assertions Feuer raises about the conduct of the proceedings below, where the lower court is said to have essentially conducted an improper mini trial in Spanish and to have considered only the unsworn statements of the defendant. Without a record to support such assertions we would ordinarily have no choice but to affirm.

However, Applegate does not apply in every situation. Recently, the Third District again explained one of those situations:

Where the hearing at issue is non-evidentiary and consists only of legal argument, the failure to provide a transcript is not necessarily fatal to appellate review. Rittman v. Allstate Ins. Co., 727 So. 2d 391, 394 (Fla. 1st DCA 1999) (holding the rule announced in Applegate applies "only where the trial court's decision turns on its resolution of contested facts"). In the instant case, the absence of a counteraffidavit or other sworn proof from de Bizemont left the trial court with only the unrebutted affidavit of Rollet. As there were no disputed issues of fact for the trial court to resolve, and only legal argument to be presented at the hearing, our de novo review is unimpeded by the absence of the hearing transcript.

Rollet v. de Bizemont, 159 So. 3d 351, 357-58 (Fla. 3d DCA 2015) (citations and parentheticals omitted).

==PAGE 3== In the instant case the lower court did not purport to rule upon a motion for summary judgment, or after trial, but rather ruled that the Statement of Claim failed to state a cause of action. As such, and as in Rollet, the lack of a transcript which precludes us from passing on the factual issues raised here serves as no impediment to our review of a dismissal for failure to state a cause of action. This is because "a ruling on a motion to dismiss for failure to state a cause of action is an issue of law[;] it is reviewable on appeal by the de novo standard of review." United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 3d 1101, 1103 (Fla. 3d DCA 2010) (emphasis added) (citations and quotation marks omitted). "The only determination the court undertakes in considering a motion to dismiss for failure to state a cause of action is whether, upon examination of the four corners of the complaint, the allegations are sufficient to sustain a claim for relief. Whether plaintiff can prove negligence on the part of defendant is not at issue." Bricker v. Kay, 446 So. 2d 1151, 1152 (Fla. 3d DCA 1984) (citations omitted). In considering such motions "[a]ll allegations of the complaint must be taken as true and all reasonable inferences drawn therefrom must be construed in favor of the non-moving party." United Auto. Ins. Co., 46 So. 3d at 1103-04 (citations omitted). Indeed, "a complaint should not be dismissed for failure to state a cause of action unless the movant can establish beyond any doubt that the claimant could prove no set of facts whatever in support of his claim." Morris v. Florida Power & Light Co., 753 So. 2d 153, 154 (Fla. 4th DCA 2000) (citations and internal quotation marks omitted).

We are unable to discern how the statement of claim fails to state a cause of action. It is a brief but detailed pleading that sets forth the alleged factual scenario and also alleges each of the required elements of a negligence action, i.e., duty, breach, and resulting damages. E.g., Kenz v. Miami-Dade County, 116 So. 3d 461, 464 (Fla. 3d DCA 2013). It provides much more detail than is often found in a small claims action. Compare e.g., Fla. Sm. Cl. R. Form 7.330. "Statement of Claim (Auto Negligence)" (standard approved statement of claim form comprising of only two sentences). It further sets forth a possible separate statutory cause of action under Section 767.01 of the Florida Statutes. See e.g., Brandeis v. Felcher, 211 So. 2d 606, 607 (Fla. 3d DCA 1968) ("It has been said that liability imposed by this section [on owners of damages caused by their dogs] is an absolute liability as an insurer and is not contingent upon a showing of the negligence of the owner, or scienter.") (citing prior version of statute).

==PAGE 4== It thus escapes us how the pleading is so deficient, if it is deficient at all, so as to warrant dismissal. See e.g., Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981)("A motion to dismiss should not be granted if the pleader sets forth facts in his complaint upon which relief can be granted on any theory.") (emphasis added). On the other hand, even if the lower court did perceive a legitimate defect in the pleading, then, as Feuer argues, the lower court should have given the plaintiff at least some opportunity to amend before dismissing. See Rule 1.190(a) of the Florida Rules of Civil Procedure (incorporated by Rule 7.020 (a) of the Florida Small Claims Rules) (allowing amendments); Dingess v. Florida Aircraft Sales & Leasing, Inc., 442 So. 2d 431, 431-32 (Fla. 5th DCA 1983) "the trial court abused its discretion by failing to grant the appellant at least one chance to amend his complaint".

In conclusion, we do not pass upon the arguments concerning the alleged conduct and activities of the lower court at the pre-trial conference. On the contrary, there is no record presented to us which supports those assertions and there is no way for us to consider them. On the other hand, it does appear that the statement of claim does sufficiently state a cause of action and should not have been dismissed, or at worst, leave should have been granted to permit amendment.

THEREFORE, based on the foregoing analysis, the Order dismissing the case for failure to state a cause of action is hereby REVERSED, and the case is remanded for further proceedings not inconsistent with this opinion.

HON. MARISA TINKLER MENDEZ

CIRCUIT COURT JUDGE

HON. JOSE FERNANDEZ

CIRCUIT COURT JUDGE

HON. JASON BLOCH

CIRCUIT COURT JUDGE

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