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Contractors v. Nortrax Equip

District Court of Appeal of Florida, Fifth District
Dec 27, 2002
833 So. 2d 286 (Fla. Dist. Ct. App. 2002)

Summary

reversing a final judgment in favor of the plaintiff for failure to attach the instrument sued upon to the complaint but permitting the plaintiff to file an amended complaint on remand

Summary of this case from Glen Garron, LLC v. Buchwald

Opinion

Case No. 5D02-959.

Opinion filed December 27, 2002.

Non-Final Appeal from the Circuit Court for Osceola County, Jeffords D. Miller, Judge.

Patrick C. Crowell of Patrick C. Crowell, P.A., Orlando, for Appellants.

Michael A. Linsky of Linsky Reiber, Tampa, for Appellees.


The defendants, Contractors Unlimited, Inc. and Glennon Wade, appeal from an order denying their motion to set aside clerk defaults, an order denying their motion to dismiss for late service, motion to vacate default final judgment and motion for relief from judgment. The defendants assert numerous purported errors in seeking to set aside the defaults and default final judgment, including untimely and improper service of process, fraud and lack of adequate notice on the issue of damages. We find one meritorious point relating to the plaintiff Nortrax Equipment Company's failure to attach an adequate copy of the instrument(s) being sued upon to its complaint as relates to the cause of action against the defendant Glennon Wade.

Nortrax sued the defendants by amended complaint. Count I was an action on open account against Contractors Unlimited, Inc. . Count II was against Wade based on his alleged personal guaranty relating to unpaid invoices. Attached to the amended complaint is a substantially illegible application for credit in the name of Contractors Unlimited, Inc. and signed by Wade, as well as an account statement and an invoice billed to the corporate defendant. The statement is an itemized copy reflecting unpaid invoices and the account balance. The invoice references a recent transaction. These documents were sufficient to support the cause of action for open account. HH Design Builders, Inc. v. Travelers' Indemnity Co., 639 So.2d 697 (Fla. 5th DCA 1994).

Nortrax, however, failed to provide a legible attachment to its amended complaint of the written instrument upon which it was suing Wade. Florida law recognizes that a default should be set aside if the complaint upon which it is based fails to state a cause of action. Myers v. Myers, 652 So.2d 1214 (Fla. 5th DCA 1995). As Trawick explains, a default "does not admit facts not pleaded, not properly pleaded, or conclusions of law." Henry P. Trawick, Florida Practice and Procedure, * 25-4, at 412 (2001 ed.). A party seeking affirmative relief may not be granted relief that is not supported by the pleadings. Id.

A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001). See Fla. R.Civ.P. 1.130(a) (all contracts or documents "upon which action may be brought . . . shall be incorporated in or attached to the pleadings"). Accordingly, we affirm the default and final judgment entered pursuant thereto against Contractors Unlimited, Inc., but set aside the default and final judgment entered against Glennon Wade and remand to permit Nortrax to file a second amended complaint against Wade.

AFFIRMED in part; REVERSED in part and REMANDED.

SHARP, W. and ORFINGER, JJ., concur.


Summaries of

Contractors v. Nortrax Equip

District Court of Appeal of Florida, Fifth District
Dec 27, 2002
833 So. 2d 286 (Fla. Dist. Ct. App. 2002)

reversing a final judgment in favor of the plaintiff for failure to attach the instrument sued upon to the complaint but permitting the plaintiff to file an amended complaint on remand

Summary of this case from Glen Garron, LLC v. Buchwald

reversing default and final judgment on the basis that plaintiff failed to attach a copy of the written guaranty upon which plaintiff was suing defendant

Summary of this case from South Florida Coastal Electric, Inc. v. Treasures on the Bay II Condo Ass'n

In Contractors Unlimited, Inc. v. Northracks Equipment Company Southeast, 833 So. 2d 286, 287-88 (Fla. 5th DCA 2002), the court concluded that "an itemized copy reflecting unpaid invoices [is] sufficient to support the cause of action for open account."Id.

Summary of this case from ICool, USA, Inc. v. MBRB Sales, LLC

In Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So. 2d 286, 287-88 (Fla. 5th DCA 2002), the Florida Fifth District Court of Appeal held that an application for credit and account statement that reflected unpaid invoices and the account balance was sufficient to support a cause of action for open account.

Summary of this case from Phx. Petroleum LLC v. Diamond Oil, LLC

In Contractors Unlimited, Inc. v. Northracks Equip. SE, 833 So. 2d 286, 287-88 (Fla. 5th DCA 2002), the court concluded that the statement at issue.

Summary of this case from Stern v. Bank of America Corp.
Case details for

Contractors v. Nortrax Equip

Case Details

Full title:CONTRACTORS UNLIMITED, INC., AND GLENNON WADE, Appellants, v. NORTRAX…

Court:District Court of Appeal of Florida, Fifth District

Date published: Dec 27, 2002

Citations

833 So. 2d 286 (Fla. Dist. Ct. App. 2002)

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