Opinion
No. 87-516.
November 25, 1987.
Appeal from the Circuit Court for Marion County; Wallace E. Sturgis, Jr., Judge.
Joseph W. Fleece, III, of Belcher Fleece, P.A., St. Petersburg, for appellants.
John R. Crawford and Susan L. Smith of Ridge Crawford, P.A., Jacksonville, for appellee.
In this case the trial judge dismissed the plaintiffs' complaint based upon an existing court file with which he was familiar. On a motion to dismiss, the court must look solely to the complaint and may not consider defenses which do not appear on the face of the complaint. Margerum v. Ross Builders, Inc., 427 So.2d 261 (Fla. 5th DCA 1983); Lewis v. Connecticut General Life Insurance Company, 427 So.2d 254 (Fla. 5th DCA 1983); Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977). It is conceded that the allegations in the instant complaint state a cause of action, and that no determinative affirmative defense appears on the face of the pleading. Basically, the trial court's action has improperly substituted a motion to dismiss for a motion for summary judgment. See Temples v. Florida Industrial Construction Company, Inc., 310 So.2d 326 (Fla. 2d DCA 1975).
Accordingly, the order entered below is
REVERSED and REMANDED.
SHARP and COWART, JJ., concur.