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Augustine v. Southern Bell Telephone Tel. Co.

91 So. 2d 320 (Fla. 1956)
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Augustine v. Southern Bell Telephone Tel. Co.

3 Citing cases

  1. Kaklamanos v. Allstate Ins. Co.

    796 So. 2d 555 (Fla. Dist. Ct. App. 2001)   Cited 12 times
    Ruling that damages sustaining an action for breach of contract must not be based upon speculation

    Aetna Life Ins. Co. v. Smith, 345 So.2d 784 (Fla. 4th DCA 1977); Cruz v. Union Gen. Ins., 586 So.2d 91 (Fla. 3d DCA 1991); Monsanto Co. v. Fuqua, 280 So.2d 496 (Fla. 1st DCA 1973); Walden. Since the Plaintiff did not incur any medical expenses which the Defendant did not reimburse, and any damages the Plaintiff might have sustained as a result of the alleged anticipatory breach are too speculative to sustain an action for breach of contract, this Court declines the opportunity to affirm the dismissal but remand with instructions to allow the Plaintiff to amend her complaint. Augusting v. Southern Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956) distinguishing Byers v. Southern Bell Tel. Tel. Co., 73 So.2d 875 (Fla. 1954) (dismissal appropriate where on the face of the complaint damages are too speculative to be recoverable). The Court understands the Appellant's frustration at the inability to obtain relief for the insurer's alleged anticipatory breach.

  2. Rader v. Allstate Ins. Co.

    789 So. 2d 1045 (Fla. Dist. Ct. App. 2001)   Cited 4 times
    In Rader, we found that the assignment of an appeal from a county court case to a single circuit court judge did not constitute a violation of procedural due process.

    Aetna Life Ins. Co. v. Smith, 345 So.2d 784 (Fla. 4th DCA 1977): Cruz v. Union Gen. Ins., 586 So.2d 91 (Fla. 3d DCA 1991); Monsanto Co. v. Fuqua, 280 So.2d 496 (Fla. 1st DCA 1973); Walden. Since the Plaintiff did not incur any medical expenses which the Defendant did not reimburse, and any damages the Plaintiff might have sustained as a result of the alleged anticipatory breach are too speculative to sustain an action for breach of contract, this Court declines the opportunity to affirm the dismissal but remand with instructions to allow the Plaintiff to amend her complaint. Augusting v. Southern Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956) distinguishing Byers v. Southern Bell Tel. Tel. Co., 73 So.2d 875 (Fla. 1954) (dismissal appropriate where on the face of the complaint damages are too speculative to be recoverable). The Court understands the Appellant's frustration at the inability to obtain relief for the insurer's alleged anticipatory breach.

  3. Nottage v. American Exp. Co.

    452 So. 2d 1066 (Fla. Dist. Ct. App. 1984)   Cited 7 times
    In Nottage, the plaintiff set forth a claim for commercial exploitation under the statute because the defendants used his likeness on a poster advertising their condominium building and on postcards that were mailed to potential customers in other countries.

    Further, whether the exception provided in Section 540.08(3)(c) applies to the facts of this case cannot be determined on a motion to dismiss in light of the allegation that plaintiff was photographed in the uniform of the Seacoast Towers, and the picture was displayed prominently in an advertisement promoting both the Seacoast Towers and the American Express Company. The only determination a court undertakes in considering a motion to dismiss for failure to state a cause of action is whether, upon examination of the four corners of the complaint, the allegations are sufficient to sustain a claim for relief. See Augustine v. Southern Bell Telephone Telegraph Co., 91 So.2d 320 (Fla. 1956); Bricker v. Kay, 446 So.2d 1151 (Fla. 3d DCA 1984). The existence of commercial exploitation and damages, and the applicability of the exception provided in Section 540.08(3)(c), if placed in issue by answer or affirmative defense, will become matters for proof.