Wednesday, August 19, 2009

Fourth District Upholds Dismissal of Declaratory Relief Claim - With a Dissent From Judge Warner

In N & D Holding, Inc. v. Town of Davie (4D08-2809), the Fourth District affirmed the dismissal of a complaint for declaratory relief. Senior Judge Shahood wrote the opinion, which Judge Hazouri joined. Judge Warner filed a dissenting opinion.
The majority stated:

The standard of review of a trial court’s ruling dismissing a complaint for declaratory judgment is whether the trial court abused its discretion. S. Riverwalk Invs., LLC v. City of Ft. Lauderdale, 934 So. 2d 620, 622 (Fla. 4th DCA 2006). “‘A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.’” Id. (quoting Palumbo v. Moore, 777 So. 2d 1177, 1178 (Fla. 5th DCA 2001)). “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Id. (citations omitted).

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However, the record contains no transcript of the hearing on the motion to dismiss, and, thus, we are without any evidence that the trial court considered outside allegations or evidence in the course of the proceedings. It is the appellant’s duty to point out where in the record the alleged error can be substantiated.

The dissent stated:

The complaint stated a cause of action for declaratory judgment. “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.”...The allegations of N & D show that it is entitled to a declaration of its rights to the zoning in question.

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