Opinion
July 11, 1956. Rehearing Denied October 31, 1956.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
Harry Zukernick, Miami Beach, for appellant.
Brown, Dean Hill, Miami, for appellees.
The trial judge granted a motion to dismiss the second amended complaint against appellees, who were defendants below, in an action by appellant to recover damages for alleged negligence in representing appellant in the purchase of certain assets of a bankrupt business.
A careful examination of the record leads us to the conclusion that, as against a motion to dismiss, the second amended complaint states a cause of action. The defensive matters argued in the brief of appellees may be appropriately presented by answer or on motion for summary judgment but they cannot be considered on the motion to dismiss the complaint. We do not here pass upon the ultimate right of recovery. This will depend upon the showing to be made by the proof, if any. Our present opinion is limited by the record entirely to the matter of the sufficiency of the pleading.
It being our view that the second amended complaint states a cause of action requiring an answer, the order granting the motion to dismiss and judgment entered pursuant thereto is reversed and the cause is remanded for further proceedings in accordance with this opinion.
TERRELL, Acting Chief Justice, HOBSON and THORNAL, JJ., and MORROW, Associate Justice, concur.