03-2407 EST. OF MARTINEZ V. POST

State: Florida

Court: Florida Third District Court

Docket No: 03-2407 EST. OF MARTINEZ V. POST

Case Date: 08/11/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 ESTATE OF ANTHONY MARTINEZ, ** Deceased, by and Through CoPersonal Representatives, PAUL ** COWAN and SHELDON ROSENTHAL and ANDRES MARTINEZ, SR. and JESSICA ** HERNANDEZ, ** Appellants, ** vs. ** POST BUCKLEY SCHUH & JERNIGAN, INC., GROSSMAN HOLDINGS LIMITED, ** BLEEMAN HOLDINGS LIMITED, and HOMESTEAD PROPERTIES, ** Appellees. **

CASE NO. 3D03-2407

LOWER TRIBUNAL NO. 00-29395

Opinion filed August 11, 2004. An Appeal from the Circuit Court for Dade County, Jon Gordon, Judge. Feiler, Leach & McCarron and Michael B. Feiler and Martin Leach, for appellants. Patrick C. Barthet and Alexander E. Barthet; Thornton, Davis & Fein and Holly S. Harvey, for appellees. Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ. PER CURIAM. On this appeal from the dismissal of an amended complaint in a child drowning-wrongful death case for failure to state a

cause of action, the order under review is vacated and the cause remanded for a determination by the trial court as to whether the building permit and other pertinent documents relating to the construction and maintenance of the lake in which the child drowned create a mandatory slope requirement (which the

plaintiffs allege the appellees violated).

If the court so

finds, or if a jury question is presented on the issue, the complaint should not be dismissed. See Gilbertson v. Lennar

Homes, Inc., 629 So. 2d 1029 (Fla. 4th DCA 1993), review denied, 639 So. 2d 979 (Fla. 1994). If, as a matter of law, there is no

such mandatory requirement, the motion to dismiss the complaint should again be granted. See Longmore v. Saga Bay Property

Owners Ass'n, 868 So. 2d 1268 (Fla. 3d DCA 2004); Kaweblum v. Thornhill Estates Homeowners Ass'n, Inc., 801 So. 2d 1015 (Fla. 4th DCA 2001). Vacated, remanded with directions.

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