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Ziegler V Frank Strelkow Gay

Ziegler v. Frank, Strelkow & Gay

Terry ZIEGLER, James Greenbaum, Jeffrey Wallerstein, and Prime Financial

Services, Inc., Appellants,

v.

FRANK, STRELKOW & GAY, Appellee.

No. 82-461.

District Court of Appeal of Florida,

Third District.

Nov. 2, 1982.

421 So.2d 671

Appeal was taken from order of the Circuit Court, Dade County, Francis X. Knuck, J., which found the cause to be proper interpleader, dismissed plaintiff from the action, and temporarily enjoined defendants from filing any further actions respecting the interpleaded funds. The District Court of Appeal held that: (1) trial court's denial of defendant's motion to dismiss complaint for interpleader, which simply challenged sufficiency of well-pleaded allegations of the complaint, did not end inquiry as to propriety of interpleader where defendants sought to allege facts not revealed by the complaint, at least some of which, if proved, constituted valid defenses to an interpleader complaint, and (2) propriety of a complaint for interpleader and dismissal of interpleading plaintiff was improperly determined without first affording defendants an opportunity to answer the complaint and raise and be heard on such defenses to it as they might have had.

Reversed and remanded with directions.

[1] INTERPLEADER k26

222k26

Trial court's denial of defendant's motion to dismiss complaint for interpleader, which simply challenged sufficiency of well-pleaded allegations of the complaint, did not end inquiry as to propriety of interpleader where defendants sought to allege facts not revealed by the complaint, at least some of which, if proved, constituted valid defenses to an interpleader complaint.

[2] INTERPLEADER k26

222k26

Propriety of a complaint for interpleader and dismissal of interpleading plaintiff was improperly determined without first affording defendants an opportunity to answer the complaint and raise and be heard on such defenses to it as they might have had.

*671 Law Offices Cytryn and Santana, P.A., Lauderhill, for appellants.

Frank, Strelkow & Gay and Carl Schmitt, North Bay Village, Richard A. Barnett and Steven B. Dolchin, Hollywood, for appellee.

Before HUBBART, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.

PER CURIAM.

[1][2] We reverse the order under review, which, inter alia, found the cause to*672 be a proper interpleader, dismissed the plaintiff-appellee from the action, and temporarily enjoined the defendants-appellants from filing any further actions respecting the interpleaded funds. We hold that (1) the trial court's denial of the defendants' motion to dismiss the complaint for interpleader which simply challenges the sufficiency of the well-pleaded allegations of the complaint does not end the inquiry as to the propriety of interpleader where the defendants, as here, seek to allege facts not revealed by the complaint, at least some of which, if proved, constitute valid defenses to an interpleader complaint, see Lowry v. Downing Manufacturing Co., 73 Fla. 535, 74 So. 525 (1917); and (2) the propriety of a complaint for interpleader and the dismissal of the interpleading plaintiff is not to be determined, as it was below, without first affording the defendants an opportunity to answer the complaint and raise and be heard on such defenses to it as they might have, Hernandez v. Travelers Insurance Co., 356 So.2d 1342 (Fla. 3d DCA 1978); see Drummond Title Co. v. Weinroth, 77 So.2d 606 (Fla.1955); Hartzog v. Dixon, 366 So.2d 848 (Fla. 1st DCA 1979).

Reversed and remanded with directions to dissolve the temporary injunction pending further proceedings to be held in accordance with this opinion.

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