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366 So. 2d 46

DeWitt v. Zimmerman

District Court of Appeal of Florida

Decided November 29, 1978

District Court of Appeal of Florida · decided 1978-11-29

Relies on Reed v. Sampson

Decided 1978-11-29

DAUKSCH, Judge.

¶1On appeal is an order dismissing a complaint. At the hearing on the motion to dismiss the complaint the judge heard evidence which led him to believe the plaintiff DeWitt was not entitled to relief as a matter of law. Perhaps the trial judge is correct about his legal conclusion but we must reverse because it is improper to consider anything but the complaint itself when deciding a motion to dismiss the complaint for failure to state a cause of action. Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977). The order dismissing the DeWitt complaint is reversed and the trial court is affirmed as to all other points on appeal.

¶2REVERSED in part, AFFIRMED in part.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.
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