Florida District Courts of Appeal, 1981

Hagen v. Florida Drug, Inc.

Florida District Courts of Appeal · Decided August 12, 1981 · Downey, Hurley, Letts

402 So. 2d 57; 1981 Fla. App. LEXIS 20736 (Southern Reporter, Second Series)

Cases that cite this one

5 later published cases cite this decision.

Alexis v. FLORIDA INS. GUAR. ASS'N (Fla. Dist. Ct. App. 2011)
Alexis v. Florida Insurance Guaranty Ass'n (Fla. Dist. Ct. App. 2011)
Hobco, Inc. v. Tallahassee Associates (11th Cir. 1987)
Joseph v. Norman Laporte Realty, Inc. (Fla. Dist. Ct. App. 1986)
Gould v. National Bank of Florida (Fla. Dist. Ct. App. 1982)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

HURLEY, Judge.

Plaintiff/appellant brings this appeal from the dismissal with prejudice of his third amended complaint. We affirm in part and reverse in part.

Count one was aimed at the defendant Remala Drug Corporation and alleged a breach of a lease agreement. Since Remala neither moved to dismiss nor filed a responsive pleading, the court erred in dismissing count one.

Count two was directed against defendant/appellee Florida Drug, Inc. Therein, plaintiff alleged the existence of a statu*58tory landlord’s lien and prayed for its enforcement against the proceeds of a subsequent lien which had been perfected by Florida Drug, Inc. Employing the usual criteria for evaluating a pleading on a motion to dismiss, see Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So.2d 1171 (Fla. 3rd DCA 1981), we conclude that count two adequately states a cause of action. Those matters now urged upon us by appellee to justify the dismissal constitute affirmative defenses which should be pled and considered at a later stage in the proceedings.

Count three, on the other hand, seeks to establish an equitable lien against certain proceeds obtained by appellee. Since there are no allegations of fraud, misrepresentation or other affirmative deception, the trial court was correct in dismissing this count. See Rinker Materials Corp. v. Palmer First National Bank and Trust Co., 361 So.2d 156 (Fla. 1978); Armetta v. Clevetrust Realty Investors, 384 So.2d 55 (Fla. 4th DCA 1980).

Accordingly, the dismissal of counts one and two is reversed; the dismissal of count three is affirmed.

LETTS, C. J., and DOWNEY, J., concur.

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