Opinion
No. 5D99-669.
Opinion filed March 3, 2000.
Appeal from the Circuit Court for St. Johns County, Richard G. Weinberg, Judge.
Geoffrey B. Dobson of Dobson Brown, P.A., St. Augustine, for Appellants.
Linda S. Calvert Hanson, St. Augustine, for Appellees.
In this case the trial judge entered a "Judgment on the Pleadings" after a hearing on the defendants' motion to dismiss. Although the judgment was misnomered, we treat it for what it actually is — a judgment of dismissal with prejudice. The plaintiffs below twice failed to state a viable cause of action and have not suggested one in their argument on appeal.
We affirm on the authority of Stelzel v. South Indian River Water Control District, 486 So.2d 65 (Fla. 4th DCA 1986) and Smith v. Tynes, 412 So.2d 925 (Fla. 1st DCA 1982).
AFFIRMED.
DAUKSCH and COBB, JJ., concur.
JACOBUS, B. W., Associate Judge, dissents, with opinion.
I respectfully dissent. This matter is before the court on appeal of the trial court's order granting judgment on the pleadings in favor of Appellees. Appellants assert that the motion for judgment on the pleadings was premature as first, no motion was filed, and secondly, no answer had been filed to the complaint and the pleadings were not closed. We agree and reverse. Rule 1.140(c), Florida Rules of Civil Procedure, clearly provides that a judgment on the pleadings is only procedurally proper after pleadings are closed. This was not the case in this matter as no answer had been filed. See also Metropolitan Bank Trust Co. v. Vanguard Insurance Company, 400 So.2d 184 (Fla. 2d DCA 1981).