Summary
reversing grant of 1.150 motion for lack of evidentiary hearing and noting, "On remand, the parties shall be entitled to a new hearing on the motion to dismiss for failure to state a cause of action. If that motion is granted, in whole or in part, plaintiff is entitled to have leave to amend."
Summary of this case from Belson v. MillerOpinion
Case No. 97-2270.
Opinion filed March 18, 1998. JANUARY TERM, 1998.
An Appeal from the Circuit Court of Dade County, Alan L. Postman, Judge. L.T. No. 96-8620
David Harris Singer and Maureen O'Donnell, for appellant.
Andrew Hall and Christopher M. David, for appellees.
Before JORGENSON, COPE and GODERICH, JJ.
In the underlying action, the trial court entered an order granting the defendants' motion to dismiss with prejudice portions of the plaintiffs' amended complaint as a sham and the remaining portions for failure to state a cause of action. We find that, with regard to the portions of the amended complaint that were dismissed as a sham, the trial court erred by granting the dismissal without first conducting an evidentiary hearing as is required by Rule 1.150, Florida Rules of Civil Procedure. However, because the order does not specify which portions of the amended complaint were dismissed as a sham, we reverse and remand the entire cause. On remand, the parties shall be entitled to a new hearing on the motion to dismiss for failure to state a cause of action. If that motion is granted, in whole or in part, plaintiff is entitled to have leave to amend.
Reversed and remanded for further proceedings consistent with this opinion.