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rubyruby27
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« on: September 11, 2006, 10:57:18 AM »

Re: Questions MSJ
« Reply #121 on: August 01, 2006, 06:44:43 PM » Quote

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Yep, FDCPA claims aren't compulsory counterclaims in the 11th Circuit, which includes Florida, Alabama and Georgia.
They are all permissive and can't be waived in a debt collection action. The one year SoL is the main issue.

Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995), affirmed, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996).


An FDCPA claim “has nothing to do with whether the underlying debt is valid. An FDCPA claim concerns the method of collecting the debt. It does not arise out of the transaction creating the debt[.]” Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995) (refusing to find waiver of FDCPA claim as compulsory counterclaim to state court action on the debt because claim “does not arise out of the transaction creating the debt, and thus was not a compulsory counterclaim under state law in the action to collect the debt.”), affirmed, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996).
 
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Dragon
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   Re: Questions MSJ
« Reply #122 on: August 04, 2006, 08:04:01 PM » Quote

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Ok FraudFighter, Where the heck do you find this info? !!!! I can't Google hardly any of it.  
 
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rubyruby27
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  Re: Questions MSJ
« Reply #123 on: August 04, 2006, 08:22:00 PM » Quote

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days and days at the nearest law library.
 
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   Re: Questions MSJ
« Reply #124 on: August 04, 2006, 08:34:25 PM » Quote

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Yeah, I hear you. I used to have carte blance subscriptions to versuslaw and Westlaw, but no more, and now that I need it!....   Thanks for the info. Here is what I have in my electronic library in case anyone needs it...

American Jurisprudence (4A Am. Jur. Business Trusts ch.1-162; 10 Am. Jur. Proof of Facts 2d 285-Equitable Relief From Execution; 13 Am. Jur. Business Trusts ch.1-108; 17A/B Am. Jur. Legal Forms 2d - Trusts ch.1-100; 74 Am. Jur. Proof of Facts 3d 353; 20 Am. Jur. Cotenancy);

Asset Protection (Asset Protection; Asset Protection and Estate Planning; Asset Protection for High Risk Business Owners; Lawsuit Proof-Protecting Your Assets From Lawsuits and Claims; Piercing the Corporate Veil; Winning Asset Protection Strategies);

Bouvier's Law Dictionary (1856 Edition; Maxim's from Bouvier's Law Dictionary);

Case Opinions (100+ Case and Opinions; Courts of Equity; Case Citations);

Contracts (Liens; Assignments; Uniform Commercial Code-UCC 1 & UCC 2; Land Patents; Invisible Contracts; Common Law Contracts; Common Law Liens);  

Conveyances (1 Fla. Jur. Forms-Sec.2 Real Estate Conveyances ch.1-127; Conveyance to Defraud Creditors; Conveyances of Homestead Realty; How Real Estate Is Conveyed; Owner Transfer of Realty To Himself and Another);

Corpus Juris Secundum (12A CJS Business Trusts ch.1-67);

Deeds (74 Am. Jur. Proof of Facts 3d 353-Grantor to Grantee of Real Property; Fla. Stat. 689.15 Annotated; How Real Estate Is Conveyed; Joint Tenancy; Owner Transfer to Himself & Another; Real Estate--Removing Clouds; Conveyances to Defraud Creditors; Conveyances of Homestead Realty; Creation of Right Of Survivorship; Estate Created By Deed To Husband and Wife But Not Married; Estate Created By Entireties to One or More Persons);

Documents (Trust Checklists; Checklists for Drafting A Transfer of Personal Property In Trust; Form Drafting Guides; Form Drafting Guide Checklists; Drafting an inter vivos trust agreement--Form drafting guides & Checklists; 9A Fla. Jur. Legal Forms-Trust Checklists);

Equity (27A Am. Jur. 2d Equity ch.1-291; Hutchins vs. Maxicenters);

Florida Jurisprudence (1 Fla. Jur. Forms Sec.2 Real Estate Conveyances ch. 1-127; 9 Fla. Jur. Forms-Legal & Business Trusts ch.1-300; 19 Fla. Jur. 2d Deeds ch.1-188; 12 Fla. Jur. 2d Cotenancy ch.1-135; 55A Fla. Jur. 2d  Trusts ch.1-249; Fla. Stat. ch. 609, et.seq. Annotated-Common Law Trusts; Fla. Stat. ch. 689 Annotated-Conveyances of Land and Declarations of Trust; How Declarations of Trust are Proved; Statutory Trusts-Florida; Trust Statutes-FL; Florida Law on Trusts ch.1-19; Florida Land Trusts ch.1-19; 13 Fla. Jur. 2d Creditors Rights and Exemptions ch.1-295; Searching for and Examining Title; Liens and Encumbrances);

Forms (Certificates of Trust; Declarations of Trust);

Law Reviews (Creation of Right of Survivorship; Estate Created by Deed to Husband and Wife but Not Married; Estate Created by Entireties to One or More Persons; Homestead and Trusts; Homestead Estate Planning; In Law or Equity; The Contractarian Basis of the Law On Trusts; Trust Fever; Validity of Spendthrift Trusts; When Tenancy By The Entireties Meets Bankruptcy Code);

Legal Forms (704 files, 102 folders, 15Mb, Various Valuable Legal Forms: Collection Documents; Corporate; Leases of Real Estate; Lending and Borrowing; Living trusts; Living Wills; Marital Settlement Agreements; Miscellaneous Legal Documents; Partnerships; Personal and Family Documents; Personal Loan Documents; Powers of Attorney; Premarital Agreements; Promissory Notes; Real Estate; Receipts; Releases; Rental of Personal Property; Sale of Personal Property; Service and Professional Agreements; Signatures and Notary Acknowledgements; Torts and Personal Injuries; Wills);

Miscellaneous (Asset Protection Planning and Forms; Definition of Income For Trusts; Irrevocable Life Insurance Trusts; Know The (trust) Rules; Legal Forms on Prejudgment Proceedings; Legal Forms on Postjudgment Proceedings; Living Trust Questionnaire; The Modern Status of the Massachusetts or Business Trust; Real Estate-Removing Clouds; Relief from Executions; Table of Contents of Pure Trust Declarations and Documents);

Taxes (Titles 1-50 US Code; 26 USC Annotated s.1-9833; Tax Law; Terminology of the Internal Revenue Code; 28 USC Annotated s.1-4001; US Attorney's Manual; IRS Criminal Investigation Manual; US Dept. of Justice Tax Case Jury Instructions Manual;  US Dept. of Justice Tax Division Criminal Prosecution Manual; US Tax Statutes at Large; Revenue Acts of 1928, 1932, 1934, 1935, 1938, 1939, 1954; Social Security Act of 1939 and 1944; Judiciary Act of 1789, 1948; Public Law; 26USC 7501 Cases; 26 USC 6672 Cases; Employment Tax Withholding and the Trust Fund Penalty; Abusive Trust Tax Evasion Schemes);

Tenancy (12 Fla. Jur. 2d Cotenancy ch.1-135; 20 Am. Jur. Cotenancy-Transfers; Character of Tenancy From One To Himself and Another; Joint Tenancy);

Treatises (16A Fletcher Cyclopedia of Private Corporations s. 8227-8274; Bogert-The Law of trusts and Trustees ch. 1-200; Restatement of Trusts 3d ch.1-89; Restatement of Trusts 2d; The Law of Trusts; Trusts and Estates);

Trusts (Trusts as an 'Uncorporation', The Massachusetts Business Trust, Common Law Trusts; Constitutional Trusts; Delaware Asset Protection Trusts; Domestic Asset Protection Trusts; Drafting Trusts That Include Broad Invasion Powers; Pure Contract Trust Questions and Answers; Pure Trust Organization Definitions; Questions and Answers on Contract Trusts; Pure Contract Trust User Manual; The Wyoming Trust and Instructions; There Are many Types of Trusts; The Truth About Trusts; The Totten Trust; Trust Information-4 files; Trust Scams; Trusts-2 files; Trusts-Divide and Conquer; What Is A Trust?-2 files);

Trust Declarations (Declaration of Pure Trust and Contract; Declaration of Trust; Declaration of Trust-Trustor as Life Beneficiary; Declaration of Trust-Marital Deduction Trust; Declaration of Trust-Insurance Holding; Declaration of Trust by Trustee; Declaration of Trust of Real Property; Declaration of Trust of Real Property-Title Holding Trust; Declaration of Trust by Trustee of Resulting Trust; Transfer of money or other personal property--General form; Transfer of money or other personal property--By husband and wife; Transfer of Goods; Transfer of additional property; Transfer of corporate stock--General form; Transfer of property to pooled income fund--Payments over the life of the donor; Account transfer letter--Revocable living trust; Securities transfer letter--Revocable living trust; Assignment of interest in group-term life insurance policy; Deed of realty creating trust; Deed of realty creating trust--Combined with inter vivos trust agreement--Broad powers of trustee concerning the rental and management of trust property; Deed poll creating trust--General form; Deed poll creating trust--For payment of debts and support of grantor; Inter vivos trust agreement--General form; Inter vivos trust agreement--Securities as principal; Elective share trust--Joint trust of husband and wife--Community property; Trust for developmentally disabled child; Revocable living trust agreement--General form; Revocable trust agreement--With corporate trustee; Declaration of trust--General form; Declaration of trust by trustee--Husband and wife as joint grantors and life beneficiaries; and many more);  

All US Statutes at large to Y2000,

DUI Defense,

English Common Law Statutes in effect in Florida,

Federal Complex Litigation Manual,

and too much more to list now. Sorry to hijack this thread.  

 
 
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fraudfighter
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   Re: Questions MSJ
« Reply #125 on: August 06, 2006, 10:45:24 AM » Quote

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"Entry of summary judgment is mandated after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish that existence of an element essential to that party's case and on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 316, 106 S.Ct. 2548, 91 L.Ed.2d 265.

 
 
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fraudfighter
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   Re: Questions MSJ
« Reply #126 on: August 06, 2006, 05:31:02 PM » Quote

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Account Stated info:

Subsequent renditions of the same account will not extend the running of the statute.
Toth v Mansell, 207 Ill App 3d 665, 152 Ill Dec 853, 566 NE2d 730.

Subsequent items, added to the balances, will not relate to items antedating the statement so as to draw them out of the operation of the statute. President, etc., of Union Bank v Knapp, 20 Mass 96;
Wing v Jimenez (App) 114 Ariz 346, 560 P2d 1253.



When there are successive statements of an account, monthly or otherwise, and the balances are carried forward to the new account, each succeeding statement becomes a new point of departure for statute of limitations purposes.
Ready v McDonald, 128 Cal 663, 61 P 272;
Lancaster County v Lancaster, 160 Pa 411, 28 A 854;
Union Stockyards Nat. Bank v Maika, 16 Wyo 141, 92 P 619.

Where accounts between parties have been formally stated on three successive occasions, the character of the account as a continuous one ceased at each settlement, and the statute began to run, from that date, againsi the implied promise to pay the balance shown by each settlement.
Dameron v Harris, 281 Mo 247, 219 SW 954.

Subsequent renditions of the same account will not extend the running of the statute.
Toth v Mansell, 207 Ill App 3d 665, 152 Ill Dec 853, 566 NE2d 730.

Subsequent items, added to the balances, will not relate to items antedating the statement so as to draw them out of the operation of the statute. President, etc., of Union Bank v Knapp, 20 Mass 96;
Wing v Jimenez (App) 114 Ariz 346, 560 P2d 1253.


As to Count V–Account Stated, Lion’s alleged that it and
the Mercados were parties to a business transaction. Lion's
further alleges that on February 29, 2000, they agreed to a
resulting balance, Lion’s rendered an accounting to the
Mercados, the Mercados did not object, and the Mercados owe
Lion's $13,682.60.

For an account stated to exist there must be
an agreement between the parties that a certain balance is
correct and due and an express or implied promise to pay this
balance.

See Raben Builders, Inc. v. First Am. Bank and Trust
Co., 561 So. 2d 1229, 1232 (Fla. 4th DCA 1990) (citing
Merrill-Stevens Dry Dock Co. v. Corniche Express, 400 So. 2d
1286, 1286-87 (Fla. 3d DCA 1981).

Where there is no such agreement between the parties, there can be no recovery on this theory. See id.
The action is premised on a sum certain and after it is proven, the account stated may be attacked only by proof of fraud, duress, mistake or other grounds cognizable in equity for the avoidance of an instrument. See id.


“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” Dionne v. Columbus Mills, Inc., 311 So.2d 681, Fla. App. 2 Dist. 1975.


There can be no presumption of acquiescence by a person who has had no dealings whatsoever with the sender of the account.
Daytona Bridge Co. v. Bond, 36 So. 445 (Fla. 1904);
C&H Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. App. 2 Dist. 1965)

 There can be no liability on an account stated if there has been no mutual agreement, and the mere presentation of a claim and its retention without objection cannot of themselves create a liability.
Braun v. Noel, 188 So.2d 564 (Fla. App. 3 Dist. 1966)


What constitutes a reasonable time within which to make objection to the account rendered is usually a question for the jury.
Where the facts are undisputed, the question is exclusively for the court, and where the proofs are conflicting, the question may be regarded as a mixed one of law and fact.
Dudas v. Dade County, 385 So.2d 1144 (Fla. App. 3 Dist. 1980): time between first statement was rendered in 1971 and six years later when the suit was filed.



Because a valid account stated must be based on previous dealings between the parties, the plaintiff must show that, at the time of the stating of the account, there have been previous dealings and transactions.
Based on a connected series of transactions with no break or interruption!!!
Mercado v. Lion’s Enterprises, Inc., 800 So.2d 753 (Fla. App. 5 Dist. 2001)

Where there have been no business transactions giving rise to the preexisting obligation, a statement of account will not support an account stated.
Architectronics, Inc. v. Salem-American Ventures, Inc., 350 So.2d 581 (Fla. App. 2 Dist. 1977)


A copy of the account may be received in evidence, if there is substantiating testimony as to its authenticity.
Withers v. Sandlin, 32 So. 829 (Fla. 1902)


“An account stated is an agreement based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, it becomes a new contract.”
“To have an account stated it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.”
Truestone, Inc. v. Simi West Industrial Park II (1984, 2d Dist.) 163 Cal App. 3d 715, 209 Cal Rptr. 757


American Jurisprudence, Accounts and Accounting.
1 Am Jur 2d Accounts and Accounting
s.44 Limitations of actions, generally
Statute of Limitation begin to run against an action on an account stated from the time it is stated,
Toland v. Sprague, 37 US 300;
Harrison v. Mason, 191 So. 909;
Johnson v. Gammill, 328 SW2d 127;
Jones v. Wilton, 75 P2d 593;
Chace v. Trafford, 116 Mass. 529;
O’Hanlon Co. v. Jess, 193 P 65;
Slayback v. Alexander, 167 NYS 194,
Chittenholm v. Giffin, 65 A2d 371;
and when there are successive statements of an account, monthly or otherwise, and the balances are carried forward to the new account, each succeeding statement becomes a new point of departure for statute of limitations purposes.
Ready v. McDonald 61 P 272; Lancaster County v. Lancaster, 28 A 854; Union Stockyards Nat. Bank v. Maika, 92 P 619.
“Where accounts between parties have been formally stated on three successive occasions, the character of the account as a continuous one ceased at each settlement, and the statute began to run, from that date, against the implied promise to pay the balance shown by each settlement.”
Dameron v. Harris, 219 SW 954;
“Subsequent renditions of the same account will not extend the running of the statute.”
Toth v. Mansell, 566 NE2d 730
“Subsequent items, added to the balances, will not relate to items antedating the statement so as to draw them out of the operation of the statute.”
President, etc., of Union Bank of Knapp, 20 Mass 96;
Wing v. Jimenez (App), 560 P2d 1253.
51 ALR2d 331. S. 9
“The time runs from the “statement” which transforms a “running account” into an “account stated”, rather than from the time of the various items in the account.”
Sayward v. Dexter H. & Co, 72 F 758 (CA9 Wash)
“Where, by the terms of an account stated, the defendant undertook that the stated sum would be paid within a certain period, postponement of the time of payment was an integral part of the account stated and had the effect of postponing the running of limitations against the claim .”
Jones v. Wilton, 75 P2d 593;
Re: Black’s Estate, 249 NW 84.
“Statutes providing a limitation period for actions on open accounts do not apply to actions to enforce an account stated.
For tabulations of period of limitation adopted in the various states,
see Am Jur 2d Desk Book Item 295.
Statutes, in some jurisdictions, provide a specific limitations period for actions on an account stated, and some such statutes apply only to particular types of accounts stated.

The proper period in which suit may be brought may be affected by statutes providing different limitations periods for actions on contracts in writing, and actions on oral contracts, and a written account stated, or a written acknowledgement of indebtedness, may constitute a contract in writing with respect to the statute of limitations applicable to such contracts.
Accounts stated are not within an exception, contained in some early statutes of limitation, in favor of accounts stated concerning trade between merchants, since, to come within such an exception, an account must be open and current.

An action to reopen and rectify an account stated, upon the ground of fraud in the statement of account, is not considered to be an action for relief on the grounds of fraud, and is, therefore, not subject to a limitation prescribed for such an action.


s.45
Even where the individual items in a statement of account antedate the period of limitations, a statement of an account may constitute an acknowledgement of the indebtedness represented by the items of the open account, so as to permit a suit on the balance due. Statutes requiring such an acknowledgment to be in writing have been applied to preclude an oral statement of the account from removing the bar of limitations, although the view has sometimes been taken that statutes requiring a writing in order to take the claim out of the statute of limitations do not apply to a statement of an account which represents an entirely new and independent cause of action, and not a mere acknowledgment of a preexisting indebtedness. The writing upon which an account stated is based may be sufficient as an acknowledgment to take the prior claims out of the statute of limitations. The general rules as to the effect of a part payment in taking a claim out of the bar of limitations may apply to cases involving an account stated.

s. 49 Evidence
Various types of evidence may be considered in determining whether an account stated has been stated. Some jurisdictions have enacted legislation providing that a verified account is prima facie evidence of an account stated, unless the account is denied under oath. (Florida hasn’t)
The plaintiff does not have to give evidence of the items comprising an account stated; all that is required is that he or she prove that the account is stated.
However, evidence as to the correctness of the account stated is admissible.
In order to sustain an action upon an account stated, predicated upon the retention without objection, of an account rendered, the evidence must show that the account was rendered to the defendant..
In addition, the presumption of acquiescence, in an account rendered , arising from its retention without objection, after the lapse of a reasonable or an apparently reasonable time, is not conclusive, and the fact of such retention or failure to object is open to explanation.
   
s.50 Burden of Proof
The party claiming an account stated has the burden to prove such an account by a preponderance of the evidence, and party who seeks to open a stated account for fraud, or to surcharge or falsify such an account on the ground of omission or mistake, has the burden of proving fraud or mistake by clear and convincing evidence. Where the defendant claims, by way of setoff or counterclaim, items of account which he or she alleges were not included in the stated account, the burden in on that party to prove that such items were not included in an account stated.

s.51 Questions of law and fact
The primary question in an action on an account stated is whether both parties intended the transaction to become a full and final settlement of the entire indebtedness represented by the account stated, and this question is determined from all the circumstances of the case. If the evidence is conflicting, the question is one of fact for the jury, upon proper instruction from the court. However, if the evidence is uncontradicted, the question is one of law, for the court.
Since the balance agreed upon, and not the constitutent items of the account, constitutes the basis of an action upon an account stated, it is erroneous in such an action, to permit discovery upon the basis of a quantum meruit.



“In addition, since the basis of an action for an account stated is that an exact, certain, and definite balance has been agreed upon, the plaintiff cannot recover when his or her complaint is for one amount and the proof establishes that the statement of account was for a different amount.”
Nelson v. Montana Iron Mining Co., 140 Mont 331, 371 P2d 874


A little bit of the Florida Evidence Code:
   
The general rules and principle of evidence are applicable to actions on accounts.
“made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memoranda, reports, records or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness.  F.S. 803(6)(a)

From FloridaLitigation.com site

Account Stated

[1] Elements and Case Citations
(1) Plaintiff and defendant made a previous transaction;
(2) The parties’ agreement that the balance is correct and due; and
(3) Defendant made an express or implicit promise to pay balance.
____________________________________
Florida State Courts
First District: Myrick v. St. Catherine Laboure Manor, Inc., 529 So. 2d 369, 371 (Fla. 1st DCA 1988)
Third District: F.D.I.C. v. Brodie, 602 So. 2d 1358, 1361 (Fla. 3d DCA 1992)
Fourth District: Carpenter Contractors of America v. Fastener Corp. of America Inc., 611 So. 2d 564, 565 (Fla. 4th DCA 1992)
Florida Federal Courts
Eleventh Circuit: First Union Discount Brokerage Servs., Inc. v. Milos, 997 F.2d 835, 841 (11th Cir. 1993)
Southern District: Nants v. F.D.I.C., 864 F. Supp. 1211, 1220 (S.D. Fla. 1994)
 
[2] Defenses to Claim for Account Stated
(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60.
(2) Statute of Limitations: § 95.11(3)(k), Fla. Stat. (four years).
(3) Failure to object to an account stated creates a presumption of correctness in the creditor’s favor absent proof of fraud, mistake or error. See First Union Discount Brokerage Servs., Inc. v. Milos, 997 F.2d 835, 841-42 (11th Cir. 1994).
(4) Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability. See Page Avjet Corp. v. Cosgrove Aircraft Servs., Inc., 546 So. 2d 16, 18 (Fla. 3d DCA 1989).
 
 
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fraudfighter
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   Re: Questions MSJ
« Reply #127 on: August 07, 2006, 11:38:00 AM » Quote

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Quote from: fraudfighter on August 01, 2006, 06:44:43 PM
Yep, FDCPA claims aren't compulsory counterclaims in the 11th Circuit, which includes Florida, Alabama and Georgia.
They are all permissive and can't be waived in a debt collection action. The one year SoL is the main issue.

Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995), affirmed, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996).


An FDCPA claim “has nothing to do with whether the underlying debt is valid. An FDCPA claim concerns the method of collecting the debt. It does not arise out of the transaction creating the debt[.]” Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995) (refusing to find waiver of FDCPA claim as compulsory counterclaim to state court action on the debt because claim “does not arise out of the transaction creating the debt, and thus was not a compulsory counterclaim under state law in the action to collect the debt.”), affirmed, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996).



"FDCPA lawsuit and action to collect underlying debt are not compulsory counterclaims"
"Consumer is therefore not barred from filing separate FDCPA action even when previously sued on the debt."
Peterson v. United Accounts, Inc., 638 F.2d 1134 (8th Cir.)


"Debt collector may not maintain collection action as counterclaim in federal court."
Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443 (D.Nev. 1994).  
 
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fraudfighter
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   Re: Questions MSJ
« Reply #128 on: Today at 01:31:06 PM » Quote

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Some MSJ opposition FL case law:


“When the record reflects the possibility or slightest doubt that an issue exists, summary judgment is improper.” Athans v. Soble, 553 So.2d 1361 (Fla. 2nd DCA 1989)


“When affirmative defenses are asserted, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency.”
Howdeshell v. First Nat’l Bank of Clearwater, 369 So.2d 432 (Fla. 2nd DCA 1979)
Accord Proprietors Ins. Co. v. Siegel, 410 So.2d 993 (Fla. 3rd DCA 1982)


“Summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.”
Pandol Bros. v. NCNB Nat’l Bank of Fla., 450 So.2d 592 (Fla. 4th DCA 1984)
 
 
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   Re: Questions MSJ
« Reply #129 on: Today at 01:39:53 PM » Quote

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Composite documents:

“Several writings, such as letters or telegrams, may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.”
Edgewater Beach Corp. v. Sugarman, 15 So.2d 260 (Fla. 1943)

“A complete contract may be gathered from such writings and be so connected with each other as to constitute one paper.”
McCay v. Seaver, 124 So. 44 (Fla. 1929)
Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla. 1927)

“Where several different writings constitute a contract, they will be construed together.” Maas Bros., inc. v. Dickinson, 195 So.2d 193 (Fla. 1967)
 
 
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   Re: Questions MSJ
« Reply #130 on: Today at 02:13:54 PM » Quote

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“Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.”
Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003)

“Where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment.”
Maung v. National Stamping, LLC, 842 So.2d 214 (Fla. 3rd DCA 2003)

“Where the wording in an agreement is ambiguous, its interpretation involves questions of fact, which preclude summary judgment.”
Ieracitano v. Shaw, 815 So.2d 787 (Fla. 4th DCA 2002)


“Under Florida law, court may grant summary judgment based on fraud in appropriate case.”
In re Hartman, 274 B.R. 911 (Bkrtcy., M.D. Fla. 2002)



“Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.”
Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003)

“The party moving for summary judgment has the burden to prove the absence of material fact issues.”
Font v. Stanley Steemer Intern., Inc., 849 So.2d 1214 (Fla. 5th DCA 2003)

“Until some evidentiary matter is presented on summary judgment motion attacking opposing party’s affirmative defenses, the opposing party has no obligation to submit affidavits or proof to establish its affirmative defenses in order to survive summary judgment.”
Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003)

“A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.”
“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.”
Rule 1.510(c)
Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003)

“If the evidence raises an issue of material fact, is conflicting, or permits reasonably different inferences, then the evidence should be submitted to the trier of fact.”
Novotny v. Estate of Dantone, 848 So.2d 398 (Fla. 4th DCA 2003)
 
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   Re: Questions MSJ
« Reply #131 on: Today at 02:39:55 PM » Quote

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I think I copied all of this summary judgment case law from Florida Digest 2d: Judgments.
This is just a sample of what is there.
If you go to FlaD2d, you'll see that Florida does not suffer for lack of summary judgment case law.


“Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.”
Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003)

“Where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment.”
Maung v. National Stamping, LLC, 842 So.2d 214 (Fla. 3rd DCA 2003)

“Where the wording in an agreement is ambiguous, its interpretation involves questions of fact, which preclude summary judgment.”
Ieracitano v. Shaw, 815 So.2d 787 (Fla. 4th DCA 2002)


“Under Florida law, court may grant summary judgment based on fraud in appropriate case.”
In re Hartman, 274 B.R. 911 (Bkrtcy., M.D. Fla. 2002)



“Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.”
Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003)

“The party moving for summary judgment has the burden to prove the absence of material fact issues.”
Font v. Stanley Steemer Intern., Inc., 849 So.2d 1214 (Fla. 5th DCA 2003)

“Until some evidentiary matter is presented on summary judgment motion attacking opposing party’s affirmative defenses, the opposing party has no obligation to submit affidavits or proof to establish its affirmative defenses in order to survive summary judgment.”
Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003)

“A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.”
“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.”
Rule 1.510(c)
Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003)

“If the evidence raises an issue of material fact, is conflicting, or permits reasonably different inferences, then the evidence should be submitted to the trier of fact.”
Novotny v. Estate of Dantone, 848 So.2d 398 (Fla. 4th DCA 2003)
       

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s. 183 Motion or other application for Summary Judgment

“Florida courts do not require fact intensive investigation into merits, when deciding whether prayer for punitive damages is properly included in complaint; Florida courts entertain punitive damage issue by way of motion to dismiss or motion to strike, not by way of summary judgment motion.”
Porter v. Ogden, Newell & Welch, 241 F.3d 1334 (C.A. 11, Fla. 2001)

“There is no prohibition on the presentation of successive motions for summary judgment.”
Florida Dept. of Transp. v. Juliano, 801 So.2d 101 (Fla. 2001)

“Summary judgment motion, which stated only in general terms that no material issues of fact or law existed and that movant was entitled to relief requested, was insufficient to place nonmoving party on notice of issues of fact or law which would be argued at hearing.” Rule 1.510
Locke v. State Farm and Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987)

“It is not necessary at hearing on summary judgment for nonmoving party to produce evidence to prove its case as it would at trial; available inferences may allow case to survive motion for summary judgment.”
Lynch v. Tennyson, 443 So.2d 1017 (Fla. 5th DCA 1983)

“On motion for summary judgment, it is the burden of the moving party to conclusively prove that no genuine issue of material fact exists.”
Dade County School Bd. V. Radio Station WQBA, 731 So.2d 638 (Fla. 1999), rehearing denied.

“Party moving for summary judgment must show conclusively absence of any genuine issue of material fact and court must draw every possible inference in favor of party against whom summary judgment is sought.”
Moore v. Morris, 475 So.2d 666 (Fla. 1985)

“Burden of party moving for summary judgment is greater, not less, than that of plaintiff at trial.”
“Party moving for summary judgment must show concusively that no material issues remain for trial.”
“It would be merely another of issues upon which plaintiff would have burden of proof at trial and should be treated as material triable issue, unless there is evidence in record showing that …”
Visingardi v. Tirone, 193 So.2d 601 (Fla. 1966), opinion conformed to 194 So.2d 921.

“The burden of one who moves for summary judgment is limited to making the required showing only as to those issues made by the pleadings.”
“The burden to prove nonexistence of genuine triable issues is on party moving for summary judgment, and burden of proving existence of such issues is not shifted to opposing party until movant has successfully met his burden.”
“Before it becomes necessary to determine legal sufficiency of affidavits or other evidence submitted by party moved against, it must first be determined that party moving for summary judgment has successfully met his burden of proving a negative, i.e., the nonexistence of genuine issue of material fact; he must prove this negative conclusively and the proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party.”
“The burden of proving absence of genuine issue of material fact is upon party moving for summary judgment; until it is determined that movant has successfully met this burden, opposing party is under no obligation to show that issues remain to be tried.”
“A movant for summary judgment may meet his burden by showing conclusively that he is not guilty of the negligence charged against him; conceivably he may also meet this burden by showing conclusively that the negligence charged, or committed by him, was not causally related to plaintiff’s injury; he might also do it by showing conclusively that plaintiff is unable to present requisite proof of negligence charged in the pleadings.”
Holl v. Talcott (Fla. 1966), 191 So.2d 40, opinion conformed to 192 So.2d 76, appeal after remand 224 So.2d 420, certiorari denied 232 So.2d 181, rehearing and rehearing granted Page v. Staley, 226 So.2d 129.

“Movant seeking summary judgment does not have burden of excluding every possible inference that opposing party might have other evidence available at trial to prove his case.”
“A movant for a summary judgment has burden of demonstrating that there is no genuine issue on any material fact.”
“All doubts regarding existence of an issue in motion for summary judgment are resolved against the movant, and evidence presented at hearing plus favorable inferences reasonably justified thereby are liberally construed in favor of the opponent.”
Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla. 1965)
“In action for negligence, defendant has no obligation to offer evidence to excuse itself upon application for summary judgment when it is properly shown that plaintiff is completely without proof to sustain her complaint.”
Food Fair Stores of Fla., Inc. v. Patty, 109 So.2d 5 (Fla. 1959), opinion conformed to 109 So.2d 399.



s. 185(6)
“Burden is on summary judgment movant to demonstrate conclusively that nonmoving party cannot prevail, and if record reflects existence of any genuine issue of material fact, or possibility of any issue, or if the record raises even the slightest doubt that issue might exist, summary judgment is improper.”
Pennco, Inc. v. American General Home Equity, Inc., 629 So.2d 307 (Fla. 2nd DCA 1993)

“If record reflects existence of any genuine issue of material fact, or possibility of any issue, or if record raises even slightest doubt that issue may exist, summary judgment is improper.”
Archie v. State Farm Fire & Cas. Co., 603 So.2d 126 (Fla. 2nd DCA 1992)

“Summary judgment is improper if record raises even the slightest doubt that issue of material fact might exist.”
Martin v. Golden Corral Corp., 601 So.2d 1316 (Fla. 2nd DCA 1992)

“Summary judgment should not be granted when record raises even slightest doubt that issue of fact might exist.”
Sfeir v. Equitable Life Assur. Soc. of U.S., 595 So.2d 971 (Fla. 2nd DCA 1992)

“Burden is on summary judgment movant to demonstrate conclusively that nonmoving party cannot prevail; if record reflects existence of any genuine issue of material fact, or possibility of any issue, or if record raises even the slightest doubt that issue might exist, summary judgment is improper.”
Cocoa Properties, Inc. v. Commonwealth Land Title Ins. Co., 590 So.2d 989 (Fla. 2nd DCA 1991)

“The law places the burden on the plaintiff to conclusively demonstrate the absence of any genuine issue regarding the viability of the defendant’s affirmative defenses, for purpose of summary judgment.”
Wendt v. Laske, 760 So.2d 1125 (Fla. 5th DCA 2000), review granted.

“If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined.”
Hoch v. Rissman, Weisberg, Barrett, 742 So.2d 451 (Fla. 5th DCA 1999), review denied 760 So.2d 948.
“Summary judgment proceedings are pre-trial in character, and their purpose is to avoid the time and expense of a useless trial if it clearly appears from the pleadings, affidavits, depositions and other evidence in the record that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law.”
Ameriscal of North East florida, Inc. v. Leiffer, 738 So.2d 993 (Fla. 5th DCA 1999), rehearing denied, review denied 763 So.2d 1042.

“If evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove issues, it should be submitted to jury as question of fact to be determined, and thus summary judgment is precluded.”
Venezia v. Egan, 671 So.2d 175 (Fla. 5th DCA 1996), rehearing denied, review denied 680 So.2d 422.

:”Summary judgment is precluded if evidence is conflicting or if inferences reasonably deducible from evidence cast doubt on material issue.”
Lane v. Talloni, 626 So.2d 316 (Fla. 5th DCA 1993)

“When evidence before court on summary judgment is conflicting or will permit different reasonable inferences, it should be submitted to jury and summary judgment.”
Wallace v. Pensacola Rent-A-Wreck, Inc., 616 So.2d 1048 (Fla. 5th DCA 1993), review dismissed 623 So.2d 494.

“A movant for summary judgment must demonstrate, by admissible evidence, nonexistence of a genuine issue of material fact.”
Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984).

“If trial judge determines evidence to be insufficient to support verdict, appellee is entitled to corrective verdict or judgment n. o. v., but this determination cannot be made by summary judgment, where all questions of fact must be resolved in favor of nonmoving party, and should a genuine issue of material fact be extant, summary judgment must be denied.”
Squitieri v. Aetna Cas. & Sur. Co., 382 So.2d 730 (Fla. 5th DCA 1990)

s. 185.1(1)
“Affidavits in opposition to summary judgment motion must be served at least one day prior to day of hearing and filed before hearing commences; there is no requirement of filing affidavit ay any specific time.” Rule 1.510(e)
“If service of affidavits in opposition to summary judgment motion is to be effected by mail, affidavits must be mailed sufficiently in advance so that expiration of five days for mailing will be prior to day of hearing.”
Silva v. Hernandez, 612 So.2d 1377 (Fla. 1993), on remand 616 So.2d 195.


“Language of rule governing court’s consideration of motion for summary judgment reflects intent to allow courts to consider only that information which has been either admitted by parties or which establishes existence or nonexistence of material facts in dispute through affidavits and information which has been timely presented.”
“Rule governing court’s consideration of motion for summry judgment requires that any opposing affidavits to motion for summary judgment be mailed at least five days prior to scheduled hearing or be hand delivered to opposing counsel at least two days prior to hearing.”
Harris v. Wilson, 656 So.2d 512 (Fla. 1st DCA 1995), rehearing denied, review granted 666 So.2d 143, decision approved 693 So.2d 945, rehearing denied.

“Summary judgment should not be granted because of technical deficiencies in nonmovant’s affidavit.”
McCoy v. Hoffmeister, 435 So.2d 989 (Fla. 5th DCA 1983)

“Trial court could refuse to consider affidavits filed on day of summary judgment hearing.” Rule 1.510(c)
Charles E. Burkett & Associates, Inc. v. Vick, 546 So.2d 1190 (Fla. 5th DCA 1989)

“Exigent circumstances may relieve party from civil rule requirement that affidavits in opposition to summary judgment motion be filed at least one day prior to hearing.”
Davis v. Lyall & Lyall Veterinarians, P.A., 506 So.2d 1072 (Fla. 5th DCA 1987), review denied 513 So.2d 1062.

s. 185.1(2)
“Affidavit in support of motion for summary judgment is defective if affidavit fails to be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that affiant is competent to testify as to matters stated in affidavit.” Rule 1.510(e)
Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615 So.2d 207 (Fla. 4th DCA 1993)

“When affidavits are filed to establish the factual basis of a summary judgment motion, they must be made on personal knowledge, demonstrate the affiant’s competency to testify, and be otherwise admissible in evidence.’
Shafran v. Parrish, 78 So.2d 177 (Fla. 2nd DCA 2001)

“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.” Rule 1.510(e)
Thompson v. Citizens Nat. Bank of Leesburg, Fla., 433 So.2d 32 (Fla. 5th DCA 1983)


s. 185.2(4)
“Unless record shows absence of essential fact, party opposing motion for summary judgment has no obligation to put in evidence on any issue raised by the motion even though he would have burden of proof on that point at trial.”
Biro v. Geiser, 199 So.2d 461 (Fla. 1967)

“Summary judgment is inappropriate unless facts of case are so crystallized that disposition of questions of law are all that remain for trial court to determine; opposing affidavit need only raise material issue of fact to survive motion, and all inferences, doubts, and conclusions must be construed in favor of party opposing motion.”
Smith v. Harr, 571 So.2d 575 (Fla. 5th DCA 1990), review denied 581 So.2d 1308.

“A party seeking to avoid a summary judgment is not required to demonstrate with clear and convincing evidence that there was a genuine issue as to any material fact, but is merely required to demonstrate that a genuine issue as to material fact is in dispute.”
Collins v. Brigman, 428 So.2d 373 (Fla. 5th DCA 1983)

“Party against whom summary judgment is sought has no initial burden to make any showing, but when party who seeks summary judgment has made initial showing of absence of any genuine issue of material fact, then party moved against has burden of coming forward with evidence sufficient to reveal that such issue exists and it is not sufficient to merely assert that an issue does exist.”
Gay Bros. Const. Co. v. Florida Power & Light Co., 427 So.2d 318 (Fla. 5th DCA 1983)

“Where motion for summary judgment is supported by evidence which reveals no genuine issue of material fact, it is not sufficient for opposing party merely to assert that issue does exist; rather, opposing party must come forward with evidence sufficient to generate issue on material fact.”
Noack v. B.L. Watters, Inc, 410 So.2d 1375 (Fla. 5th DCA 1982)

s. 185.2(5)
“Where answer raised issue of fact that was not met by plaintiff’s affidavit in support of motion for summary judgment, genuine issue of fact remained regardless of insufficiency of defendant’s counter-affidavit, and summary judgment for plaintiff was erroneous.”
Chereton v. Armstrong Rubber Co., 87 So.2d 579 (Fla. 1956)

“In face of answer denying all allegations of the complaint, affidavit containing statement by officer of plaintiff that the allegations of the complaint were true and that he was personally knowledgeable was insufficient to support motion for summary judgment.”
Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA 1986)

“The trial court should not enter a summary judgment due to technical difficulties in the nonmovant’s affidavit.”
Hammond v. Joyce, 756 So.2d 162 (Fla. 2nd DCA 2000)

“Plaintiff’s affidavit in support of summary judgment, stating “I believe that there is no defense to the cause of action set forth in my complaint,” was not sufficient proof to establish that there was no material issue of fact or that defendants’ affirmative defense was legally insufficient.”
Witts v. Cortman, 620 So.2d 197 (Fla. 2nd DCA 1993)


s. 185.2(6)
“In construing affidavits submitted at hearing on motion for summary judgment, court holds moving party to a strict standard and the papers supporting his position are closely scrutinized, while papers of opposing party are leniently treated.”
Groner-Youngerman, Inc. v. Denison, 117 So.2d 210 (Fla. 2nd DCA 1959)

“When deposition and affidavit of party on motion for summary judgment appear to be in conflict, reasonable inference rule applies, and if it is possible that both deposition and affidavit are true, any reasonable inference must be resolved in favor of party defending against motion.”
Buntin v. Carter, 234 So.2d 131 (Fla. 4th DCA 1970)


“Liberal treatment is to be accorded the papers of a party opposing a motion for summary judgment.”
Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed 216 So.2d 448.


s. 185.2(9)
“Where plaintiff fails to present affidavits is support of allegations of the complaint, or in the alternative affidavits in opposition to a motion for summary judgment showing reasons why essential facts could not be presented by contesting affidavits, all that trial judge has before him for consideration are unsupported complaint and deposition or affidavits of movant for summary judgment, and if depositions and affidavits reveal no cause for complaint it is proper to enter a summary judgment for the defendant.”
Pritchard v. Peppercorn & Peppercorn, Inc., 96 So.2d 769 (Fla. 1957)


s. 185.3(1)
“A record that is silent on a determinative issue of fact forecloses summary judgment in that the movant’s burden is to establish that he is entitled to a judgment as to a matter of law because there is no genuine issue as to any material fact.”
Shores v. Wegmann, 390 So.2d 87 (Fla. 1st DCA 1979)


“A record that is silent on a determinative issue of fact forecloses summary judgment.” Rule 1.510(c).
Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979)


“In subrogees’ contribution action against retailer which had sold baseball pitching machine, filed after manufacturer of machine has settled with injured party, evidence raised substantial fact issue as to whether retailer has received written notices warning of dangerous characteristics of pitching machine which precluded summary judgment.”
Home Ins. Co. v. C & G Sporting Goods, Inc., 453 So.2d 121 (Fla. 1st DCA 1984)


“In action to collect amount due for services rendered, amount of debt was sufficiently established to permit entry of summary judgment for creditor; invoices were attached to complaint, creditor filed affidavits of its credit officer, and debtor did not contest amount of debt at hearing on summary judgment motion.”
“There was no contractual duty of good faith that creditor could have breached to provide debtor with a defense to suit on debt, where creditor conceded at summary judgment hearing that there was no contract between the parties.”
Melbourne Medical Laboratory, Inc. v. Lab Corp. of America, 722 So.2d 962 (Fla. 5th DCA 1998)

“Record sufficiently disclosed presence of issues of fact in relation to complaint alleging an account stated so as to preclude summary judgment for plaintiff.”
Recreation Corp. of America v. Jack Drury & Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970)

“In action to recover money allegedly due and owing from defendant for goods sold and delivered and on account stated, that affidavit in support of plaintiff’s motion for summary judgment did not show that it was made on personal knowledge, did not set forth such evidentiary facts as would be admissible in evidence, and did not affirmatively show that affiant was competent to testify to matters therein precluded summary judgment.” Rule 1.510(e)
Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So.2d 174 (Fla. 3rd DCA 1971)

“Where assignee of account receivable, in support of its motion for summary judgment, filed affidavits asserting that it renewed assignor’s notes only after account debtor confessed fact that assigned account receivable was outstanding and owing to assignor, assignee was not precluded from asserting estoppel at summary judgment hearing.”
Boulevard Nat. Bank of Miami v. Gulf American Land Corp. 179 So.2d 584 (Fla. 3rd DCA 1965), quashed 189 So.2d 628, on remand 190 So.2d 67.









s. 186
“Where all the pleadings have been filed and depositions taken, on a motion for summary judgment only questions of fact are raised that must be decided upon the evidence and not on the pleadings.”
“On a motion for summary judgment, the court should not be asked to substitute itself for the jury and try controverted issues of fact, but for the purpose of such motion, it should be assumed that every fact as to which the party moved against has any appreciable evidence may at a trial be established to the satisfaction of a jury.”
Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla. 1956)


“Constitutional right to jury trial demands that particular care be accorded in ruling on motions for summary judgment to end that controverted issues of fact be resolved not upon pleadings and depositions but by jury functioning under proper instructions.”
Drahota v. Taylor Const. Co., 89 So.2d 16 (Fla. 1956)


“A hearing on a motion to strike pleadings, or motion for summary judgment is not to try issues, but to determine whether there are any issues to be tried.”
Meadows v. Edwards, 82 So.2d 733 (Fla. 1955)


“If salient facts are established beyond dispute, question then arises whether one party or the other party should be awarded judgment as a matter of law, and that question may be decided by trial judge using the established facts as a premise.”
Manning v. Clark, 71 So.2d 508 (Fla. 1954)

“Unsworn summary judgment motion is not sufficient to rebut allegations of unsworn complaint, which must be accepted as true for purposes of summary judgment.”
Green v. CSX Transp., Inc. 626 So.2d 974 (Fla. 1st DCA 1993)

“Trial court in ruling on motion for summary judgment may not resolve controverted issues of fact.”
Manucy v. Manucy, 362 So.2d 478 (Fla. 1st DCA 1978)


“Where none of pleadings were under oath, allegations of complaint had as much efficacy as allegations of answer for purpose of motion for summary judgment.”
Feinman v. City of Jacksonville, 356 So.2d 50 (Fla. 1st DCA 1978)



“Court on motion for summary judgment could not consider evidence which was inadmissible under parol evidence rule.”
Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962), certiorari denied 146 So.2d 378

“Only competent evidence may be considered by court in ruling upon motion for summary judgment.”
Halavin v. Tamiami Trail Tours, Inc., 124 So.2d 746 (Fla. 1st DCA 1960)

“Summary judgment must be decided on evidence and not pleadings.”
West American Ins. Co. v. Rauch, 412 So.2d 956 (Fla. 4th DCA 1982), review denied 424 So.2d 764.

“On motion for summary judgment, the court must determine if the movant has conclusively demonstrated that not real fact issue exists and that there is no evidence on which opposing party could rely.”
“The court must not only consider the evidence, such as the pleadings, interrogatories, depositions, affidavits, etc., on a motion for summary judgment, but from such evidence,
must be able to conclude that no reasonable inference would give rise to a disputed fact issue.”
Shollenberger v. Baskin, 227 So.2d 79 (Fla. 4th DCA 1969)

“On motion for summary judgment, ample opportunity should be granted opposing party to justify his opposition.”
“Under rule, a ruling on a motion for summary judgment may be deferred and motion decided after opposing party has been granted an opportunity to develop through affidavits or depositions material necessary to justify his opposition.”
“Trial court judge does not function as a trier of fact in determining a motion for summary judgment.”
“On motion for summary judgment, all reasonable inferences are drawn against movant in favor of the opponent of the motion and papers supporting motion are closely scrutinized and opposing papers indulgently treated.”
Firestone v. Time, Inc, 231 So.2d 862 (Fla. 4th DCA 1970) ……

“Where summary judgment should be entered in cause and it appears the unsuccessful party may have a cause of action or defense if properly pleaded, proper procedure is to grant motion for summary judgment but with leave to amend.”
Sea Shore Motel Corp. v. Fireman’s Fund Ins. Co., 233 So.2d 651 (Fla. 4th DCA 1970), certiorari denied 238 So.2d 425.



“Where entry of summary judgment for defendant is proper but record establishes that plaintiff may have a viable claim if properly pleaded, opportunity should be afforded to amend complaint, and such authorization may be included in order granting summary judgment.”
Watier v. REW Crane Services, Inc., 240 So.2d 177 (Fla. 4th DCA 1970), amended Gold Coast Crane Service, Inc. v. Wateir, 257 So.2d 249.
 
 
 
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   Re: Questions MSJ
« Reply #132 on: Today at 02:54:34 PM » Quote

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Inadmissible affidavits

“Statements contained in affidavits, to be considered on motion for summary judgment, must be of such evidentiary value that they would be admissible at trial.”
Garwood v. Equitable Life Insurance Society of U.S., 299 So.2d 163 (Fla. 3rd DCA 1974)

“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.”  Fla. R. Civ. P. 1.510(e).
Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA 1983)

“Affidavit based on information and belief rather than personal knowledge was not admissible into evidence and should not have been considered by trial court in connection with motion for summary judgment.” F.S.A. 90.604, Fla. R. Civ. P. 1.510(e)
Campbell v. Salman, 384 So.2d 1331 (Fla. 3rd DCA 1980)

“Affidavit filed by plaintiff in support of motion for summary judgment in action on open account for goods sold and delivered was insufficient to establish lack of material issue of fact, where it did not identify account, merely stated conclusions, did not set forth such facts as would be admissible in evidence, was not specific as to who allegedly owed the account, did not show that it was made on personal knowledge, and did not deal with issue raised by counterclaim, looked on as a defense.” Fla. R. Civ. P. 1.110(d), 1.510(e).
Silber v. Campus Sweater & Sportwear, 313 So.2d 409 (Fla. 1st DCA 1975)

“Where movants based summary judgment motion on facts contained in unsworn complaint, unsupported by affidavit or other competent evidence, nonmovant’s objection to summary judgment was well taken.”
Schrank v. Pearlman, 683 So.2d 559 (Fla. 3rd DCA 1966)
 
 
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   Re: Questions MSJ
« Reply #133 on: Today at 03:39:45 PM » Quote

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Default Judgment and other case law:



“Jurisdiction of District Court of Appeal is limited to review of final orders of coun
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« Reply #1 on: September 11, 2006, 01:50:52 PM »

A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)

“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. App. 4 Dist. 1992)
See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. App. 5 dist. 2002)
 
 
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   Re: Questions MSJ
« Reply #16 on: June 29, 2006, 04:46:45 PM » Quote

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“Evidence which is subject to objection at time of trial is subject to being noted as unavailable at time of hearing on summary judgment.”
Riviera Printing Co. v. Hessler’s, Inc. 109 So.2d 778 (Fla. App. 1959)
Pollock v. Kelly 125 So.2d 109 (Fla. App. 1960)
 
 
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« Reply #17 on: June 29, 2006, 04:47:52 PM » Quote

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“The statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to as cause of action.”
City of Miami v. Brooks 70 So.2d 306, (Fla. 1954)

“Generally, under Florida law, the statute of limitations begins to run when a person has notice of an invasion of legal rights or notice of his right to a cause of action.” Laney v. American Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003)

“Intent of statute setting forth limitations period for contract actions is to limit commencement of actions from time of their accrual.”
“Generally, cause of action on contract accrues and statute of limitations begins to run from time of breach of contract.”
State Farm Mutual Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla. 1996)

“A cause of action on an oral loan payable on demand accrues, and the statute of limitations begins to runs, at the time when demand for payment is made.” Mosher v. Anderson, 817 So.2d 812 (Fla. 2002)
 
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« Reply #18 on: June 29, 2006, 04:48:24 PM » Quote

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 “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”
McGill v. Cockrell, 101 So. 199 (Fla. 1924) Id. at 201.
 
 
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« Reply #19 on: June 29, 2006, 04:48:58 PM » Quote

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“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought and the writing is signed by the party to be charged and there is consideration for the promise, there is a contractual obligation in writing subject to five-year statute of limitations.”
Mercy Hospital, Inc. v Carr, 297 So.2d 598 (Fla. App. 3 Dist. 1974)

“Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.
 
 
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« Reply #20 on: June 29, 2006, 04:49:42 PM » Quote

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“Only those circumstances expressly provided by Florida’s tolling statute will toll statute of limitations.”  In re Southeast Banking Corp., 855 F.Supp. 353 (S.D. Fla. 1994), affirmed 69 F.3d 1539.  

“The Legislature enumerated specific grounds for tolling limitation periods.
Furthermore, the tolling statute specifically precludes application of any tolling provision not specifically provided therein. See section 95.051(2), Fla. Stat. (1987)”
“A determination of whether a cause of action is time-barred pursuant to the expiration of a statute of limitations may require two different analyses: First, whether the cause of action accrued and, if so, when; second, whether a statutory tolling provision applies.”
Heardon v. Graham, 767 So.2d 1179 (Fla. 2000) Id. at 1185.

“Prior to 1974, there were no statutory enumeration of facts or circumstances which would toll the running of time under any statute of limitations although a number of such circumstances or facts had developed through case law. In 1974, the legislature enacted section 95.051, Fla. Stat. which provided that the running of time under any statute of limitations was tolled by certain listed circumstances and further provided in subsection (2) that “no disability or other reason shall toll the running of any statute of limitations except those specified in this section, section 95.091, the Florida Probate Code, or the Florida Guardianship Law.”  Id. at 779
“Any contrary law was superseded by section 95.051.”  Id.at 779
 Chaplin v. Cooke, 432 So.2d 778 (Fla. App. 1 Dist. 1983)

“Under section 95.051(2), Florida Statutes (1987), the court was not able to create an exception to toll the statute of limitations not specifically enumerated by the legislature.”
“Section 95.051(2) specifically provides that no disability or “other reason” shall toll the running of any statute of limitations except those specifically delineated.”
Swartzman v. Harlan, 535 So.2d 605 (Fla. App. 2 Dist. 1988)
 
 
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« Reply #21 on: June 29, 2006, 04:50:52 PM » Quote

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“Courts not write exceptions into statutes when the legislature has not.”
Federal Ins. Co. v. Southwest Florida Ret. Ctr., Inc, 707 So.2d 1119 (Fla. 1998)

“The statute specifically precludes application of any tolling provision not specifically provided for by the Legislature. See section 95.051(2), Fla. Stat. (1985)”
Putnam Berkley Group, Inc. v. Dinin, 734 So.3d 532 (Fla. App. 4 Dist. 1999)

Cases cited by Putnam:
“When interpreting a statute, legislative intent is the polestar by which we are guided.”
Parker v. State 406 So.2d 1089 (Fla. 1981)
“This intent is gleaned primarily from the plain language of the statute.”
Aetna Cas. & Sur. Co. v. Huntington Nat’l. Bank, 609 So.2d 1315 (Fla. 1992)
“When construing statutes of limitations, generally courts will not write in exceptions when the legislature has refused to do so.”
Carey v. Beyer, 75 So.2d 217 (Fla. 1954)
“We cannot write into the law any other exception, nor can we create by judicial fiat a reason, or reasons, for tolling the statute since the legislature dealt with such topic and thereby foreclosed judicial enlargement thereof.”
Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla. 1952)


F.S. 95.051  When limitations tolled.--
(1)  The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
(a)  Absence from the state of the person to be sued.
(b)  Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.
(c)  Concealment in the state of the person to be sued so that process cannot be served on him or her.
(d)  The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.
(e)  Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.
(f)  The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.
(g)  The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.
(h)  The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

Paragraphs (a)-(c) shall not apply if service of process or service by publication can be made in a manner sufficient to confer jurisdiction to grant the relief sought. This section shall not be construed to limit the ability of any person to initiate an action within 30 days of the lifting of an automatic stay issued in a bankruptcy action as is provided in 11 U.S.C. s. 108(c).
(2)  No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.
 
 
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« Reply #22 on: June 29, 2006, 04:52:20 PM » Quote

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“Mere failure to object to an account sent by mail to one who has had no dealings with sender does not give rise to presumption of acquiescence of debt.”
C. & H. Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. App. 2 Dist. 1965)

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”  
Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998)

“”Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”
Nants v. F.D.I.C., 864 F.Supp. 1211 (S.D.Fla. 1994)

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”
Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”
Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

“Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself.”
Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)


 
 
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« Reply #23 on: June 29, 2006, 04:53:08 PM » Quote

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“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.”  Fla. R. Civ. P. 1.510(e).
Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. App. 5 Dist 1983)

“Affidavit based on information and belief rather than personal knowledge was not admissible into evidence and should not have been considered by trial court in connection with motion for summary judgment.” F.S.A. 90.604, Fla. R. Civ. P. 1.510(e)
Campbell v. Salman, 384 So.2d 1331 (Fla. App. 3 Dist. 1980)

“Affidavit filed by plaintiff in support of motion for summary judgment in action on open account for goods sold and delivered was insufficient to establish lack of material issue of fact, where it did not identify account, merely stated conclusions, did not set forth such facts as would be admissible in evidence, was not specific as to who allegedly owed the account, did not show that it was made on personal knowledge, and did not deal with issue raised by counterclaim, looked on as a defense.” Fla. R. Civ. P. 1.110(d), 1.510(e).
Silber v. Campus Sweater & Sportwear, 313 So.2d 409 (Fla. App. 1 Dist. 1975)

“Where movants based summary judgment motion on facts contained in unsworn complaint, unsupported by affidavit or other competent evidence, nonmovant’s objection to summary judgment was well taken.”
Schrank v. Pearlman, 683 So.2d 559 (Fla. App. 3 Dist. 1966)


 
 
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« Reply #24 on: June 29, 2006, 04:53:59 PM » Quote

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Here's your case law reference on the 4 year SoL for unjust enrichment.



“An action for unjust enrichment is governed as an action on a contract not founded on a written obligation and must be commenced within four years after accrual.”
Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1241 (Fla. App. 4 Dist. 1982)
Fowler v. Towse, 900 F.Supp. 454 (S.D. Fla. 1995)
 
 
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« Reply #25 on: June 29, 2006, 04:54:42 PM » Quote

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“Where pro se pleads in a suit, the court should endeavor to construe pro se pleadings without regard for technicalities.”
Picking v. Pennsylvania R. Co., 151 F.2d 240 (C.A. 3rd Cir., 1945)

“When … pro se, allegations must be read liberally and court must hold to a less stringent standard than those drafted by attorneys.”
 Raber v. Osprey Alaska, 187 F.R.D. 675 (M.D. Fla. 1999)
 
 
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« Reply #26 on: June 29, 2006, 05:01:22 PM » Quote

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FL Inequitable conduct doctrine case


2002 Fla. LEXIS 341,*;826 So. 2d 221;
27 Fla. L. Weekly S 175
BARBARA MOAKLEY, Petitioner, vs. SHERI SMALLWOOD, Respondent.
No. SC95471
SUPREME COURT OF FLORIDA
826 So. 2d 221;2002 Fla. LEXIS 341;27 Fla. L. Weekly S 175
        February 28, 2002, Decided
SUBSEQUENT HISTORY:   As Revised on Denial of Rehearing April 18, 2002.
  PRIOR HISTORY:    [*1]  Application for Review of the Decision of the District Court of Appeal - Direct Conflict. Third District - Case No. 3D98-398. (Monroe County).
Moakley v. Smallwood, 730 So. 2d 286, 1999 Fla. App. LEXIS 3456, 24 Fla. L. Weekly D 762 (Fla. Dist. Ct. App. 3d Dist. 1999)
COUNSEL:   John P. Fenner, Boca Raton, Florida, for Petitioner.
 
Sheri Smallwood, pro se, Key West, Florida, for Respondent.
JUDGES:   PARIENTE, J. SHAW, HARDING, ANSTEAD, and QUINCE, JJ., concur. WELLS, C.J., concurs in result only with an opinion. LEWIS, J., concurs in result only.
OPINIONBY:   PARIENTE
OPINION:  

REVISED OPINION
 
PARIENTE, J.

We have for review Moakley v. Smallwood, 730 So. 2d 286 (Fla. 3d DCA 1999), a decision of the Third District Court of Appeal, which expressly and directly conflicts with the decision of the Second District Court of Appeal in Israel v. Lee, 470 So. 2d 861 (Fla. 2d DCA 1985), and the First District Court of Appeal in Miller v. Colonial Baking Co., 402 So. 2d 1365 (Fla. 1st DCA 1981). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue presented in this case is whether a trial court possesses the inherent authority to assess attorneys' fees as a sanction against an attorney for the attorney's bad faith conduct during the course of litigation.

BACKGROUND

This case arises  [*2]  out of post-dissolution proceedings and the imposition of attorneys' fees against petitioner Barbara Moakley, the former wife, and her trial attorney. The Third District explained the factual background of this case as follows:

According to the findings of the trial court in post-dissolution proceedings, the former wife [Moakley] subpoenaed the former husband and two of his former attorneys, seeking to compel production of an original note which had been awarded to the former wife in the final judgment. On its face, the motion to compel production conceded that one of the former attorneys, appellee Sheri Smallwood, did not have the note and she so testified. Because of short notice, Ms. Smallwood was unable to be relieved of the obligation to attend the hearing, fifty miles from her office. The trial court granted monetary sanctions against the former wife and her counsel. The court concluded that there was no reasonable explanation for issuance of the subpoena to Ms. Smallwood.
 
Moakley, 730 So. 2d at 286-87 (footnote omitted). The trial court imposed attorneys' fees in the amount of $ 1125 against Moakley and her counsel, Margaret Broz, as compensation  [*3]  for the time Smallwood expended in responding to the subpoena. See 730 So. 2d at 287. On appeal, the Third District affirmed the imposition of monetary sanctions against both Moakley and her attorney, concluding that the trial court possessed the inherent authority to do so. See id.

ANALYSIS

The issue before us in this case is whether the trial court possessed the inherent authority to impose attorneys' fees against Moakley's attorney  [*4]  absent a specific rule or statute authorizing the imposition of such fees. n1 This Court has explained that "generally, a court may only award attorney's fees when such fees are 'expressly provided for by statute, rule, or contract.'" Bane v. Bane, 775 So. 2d 938, 940 (Fla. 2000). However, since 1920, this Court has recognized the inherent authority of trial courts to assess attorneys' fees for the misconduct of an attorney in the course of litigation. See United States Sav. Bank v. Pittman, 80 Fla. 423, 86 So. 567, 572 (Fla. 1920). In Pittman, this Court approved an award of fees against an attorney, where the trial court found that the attorney had unnecessarily conducted foreclosure proceedings on a mortgage for the sole purpose of increasing his fee and that the attorney was acting in his own self-interest and against the wishes of his client. Id.
(THE COURT MADE THE ATTORNEY PAY BACK ATTY. FEES TO HIS CLIENT)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Smallwood urges as an alternative basis for affirmance section 92.231, Florida Statutes (1997), which provides for compensation of expert witnesses. However, the record does not reflect that Smallwood was offered as an expert or permitted by the court to qualify and testify as such, as required by section 92.231. See Lee County v. Galaxy Fireworks, Inc., 698 So. 2d 1371, 1372 (Fla. 2d DCA 1997); Thellman v. Tropical Acres Steakhouse, Inc., 557 So. 2d 683, 684 (Fla. 4th DCA 1990). Thus, the award cannot be upheld on that basis.

Smallwood also argues that the amount awarded to her is proper under section 92.151, Florida Statutes (1997), as witness compensation. Although section 92.151 does provide that "compensation shall be paid to the witness by the party in whose behalf the witness is summoned," section 92.142, Florida Statutes (1997), which provides that witnesses shall receive $ 5 per each day of actual attendance and six cents for actual distance traveled to and from the court, does not provide authority for the $ 1125 awarded to Smallwood.

Finally, we note that neither the trial court nor the Third District based its award of attorneys' fees against Moakley and Broz on section 57.105, Florida Statutes (1997), which allows for attorneys' fees against an attorney and a client in equal shares for bringing a complaint or defense raising a "complete absence of a justiciable issue of either law or fact." § 57.105, Fla. Stat. (1997). Therefore, we express no opinion as to whether the award of attorneys' fees would have been proper under this statute. Further, the assessment of attorneys' fees in this case preceded the enactment of the amendments to section 57.105, Florida Statutes, which became effective in October 1999. Moreover, neither party argues the applicability of the amended version of section 57.105, which is broader than the version existing at the time attorneys' fees were assessed in this case, and provides:

(1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.
 
However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

(2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

(3) At any time in a civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or any response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay.

(4) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.
 
§ 57.105, Fla. Stat. (2001) (emphasis supplied).
 

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As we have subsequently stated, "Clearly, a trial judge has the inherent power to do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608-09 (Fla. 1994).
Most recently, the Court in Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998), recognized the inherent authority of a trial court to award attorneys' fees for bad faith conduct against a party, even though no statute authorized the award:
 
The inequitable conduct doctrine permits the award of attorney's fees where one party has exhibited egregious conduct or acted in bad faith. Attorney's fees based on a party's inequitable conduct have been recognized by other courts in this country. See Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962) (awarding attorney's fees based on respondent's "recalcitrance" and "callous" attitude); Rolax v. Atlantic Coast Line R.R. Co., 186 F.2d 473, 481 (4th Cir. 1951) (holding  [*6]  that attorney's fees were justified because "plaintiffs of small means have been subjected to discriminatory and oppressive conduct by a powerful labor organization"). We note that this doctrine is rarely applicable. It is reserved for those extreme cases where a party acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 1983) (quoting F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S. Ct. 2157, 2165, 40 L. Ed. 2d 703 (1974)).
"Bad faith may be found not only in the actions that led to the lawsuit, but also in the conduct of the litigation." Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir. 1982) (quoting Hall v. Cole, 412 U.S. 1, 15, 93 S. Ct. 1943, 1951, 36 L. Ed. 2d 702 (1973)).

This Court and other courts in this state have recognized that attorney's fees can be awarded in situations where one party has acted vexatiously or in bad faith. See Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985) ("This state has recognized a limited exception to this general  [*7]  American Rule in situations involving inequitable conduct."); Hilton Oil Transport v. Oil Transport Co., 659 So. 2d 1141, 1153 (Fla. 3d DCA 1995); In re Estate of DuVAL, 174 So. 2d 580, 587 (Fla. 2d DCA 1965).
 
Nothing in the Court's reasoning in Bitterman, in which we acknowledged the trial court's inherent authority to award attorneys' fees under extremely narrow circumstances, limits the application of this authority to a party rather than the party's attorney. Indeed, the attorney is not only a representative of the client, but also an officer of the court. See Preamble to Rules of Professional Conduct, R. Regulating Fla. Bar ("A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.").

Moreover, appellate decisions that have addressed this issue have recognized that trial courts must sparingly and cautiously exercise this inherent authority to award attorneys' fees against an attorney. For example, in Patsy v. Patsy, 666 So. 2d 1045 (Fla. 4th DCA 1996), another post-judgment dissolution proceeding, the Fourth District  [*8]  affirmed an award of attorneys' fees and costs against an attorney for the bad faith filing of a motion to disqualify counsel. The Fourth District recited the facts as follows:

In a modification proceeding in which he represented the former husband, Meisler filed a motion to disqualify opposing counsel on the ground that he had perpetrated a fraud on the court on two prior occasions. At Meisler's request, based on the motion, the court stayed further proceedings until after it conducted an evidentiary hearing on the motion to disqualify. After hearing the evidence the trial court found that the motion had no factual basis, was filed solely to delay the proceedings, and was a sham. The court assessed attorney's fees of $ 1,870 and costs.
 
Id. at 1046 (emphasis supplied). After reviewing the applicable case law, the Fourth District concluded that trial courts possess the inherent authority to assess attorneys' fees for litigating in bad faith. See id. at 1047; see also David S. Nunes, P.A. v. Ferguson Enter., Inc., 703 So. 2d 491, 491 (Fla. 4th DCA 1997) (citing Patsy for the proposition that the trial court had inherent  [*9]  authority to assess attorneys' fees against counsel who did not attend a mediation and advised his clients that they also did not have to attend).

Similarly, in Lathe v. Florida Select Citrus, Inc., 721 So. 2d 1247, 1247 (Fla. 5th DCA 1998), the Fifth District upheld the imposition of attorneys' fees against an attorney who lied to the trial court after he failed to appear for a deposition. The Fifth District observed that the attorney did not deny that he lied to the court, but argued that the trial court could not impose attorneys' fees without first finding him in contempt. See id. Relying on this Court's decision in Pittman, the Fifth District rejected this argument and held that a "trial court has inherent authority to order an attorney, who is an officer of the court, to pay opposing counsel's reasonable attorney's fees incurred as a result of his or her actions taken in bad faith." Lathe, 721 So. 2d at 1247. The Fifth District explained that in the case before it, the attorney had notice and an opportunity to object to the sanctions and to provide mitigating evidence before awarding fees for the attorney's bad faith conduct. See  [*10]  id.

Indeed, many jurisdictions recognize this limited inherent authority to impose attorneys' fees against an attorney for bad faith conduct in the course of litigation. See, e.g., Eberly v. Eberly, 489 A.2d 433, 449 (Del. Super. Ct. 1985) (holding that trial court had inherent authority to assess attorneys' fees against attorney who "unreasonably and vexatiously prolonged the proceedings below and increased the cost of representation to both parties"); Charles v. Charles, 505 A.2d 462, 467 (D.C. 1986) (holding that trial court has inherent authority to impose attorneys' fees against attorney who repeatedly failed to obey court orders to file an answer or affidavit in lieu thereof); Lester v. Rapp, 85 Haw. 238, 942 P.2d 502, 505-06 (Haw. 1997) (remanding case to trial court to determine whether counsel's misrepresentation of facts to the court constituted bad faith and whether his conduct resulted in the unnecessary incurrence of attorneys' fees); State v. Grant, 487 A.2d 627, 629 (Me. 1985) (holding that trial court had inherent authority to compel attorney who improperly took money from client to return  [*11]  money to client); Battryn v. Indian Oil Co., 472 A.2d 937, 941-42 (Me. 1984) (holding that trial court had inherent authority to impose sanctions against attorney for discovery abuses); Winters v. City of Oklahoma City, 740 P.2d 724, 727 (Okla. 1987) (holding that the intentional filing and prosecution of a claim under Oklahoma law that lacked any plausible factual or legal basis constituted a bad faith action and justified the award of sanctions against the attorney); Coburn v. Domanosky, 257 Pa. Super. 474, 390 A.2d 1335, 1338 (Pa. Super. Ct. 1978); Van Eps v. Johnston, 150 Vt. 324, 553 A.2d 1089, 1091 (Vt. 1988) (holding that trial courts have inherent authority to impose sanctions against attorneys for "bad faith," which encompasses both the filing and the conduct of litigation and includes "abuse of the judicial process"); Daily Gazette Co. v. Canady, 175 W. Va. 249, 332 S.E.2d 262, 266 (W. Va. 1985) (holding that trial court has inherent authority to "order payment by an attorney to a prevailing party reasonable attorneys fees and costs incurred as the result of his or her vexatious, wanton,  [*12]  or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law"). See generally Alan Stephens, Annotation, Attorney's Liability Under State Law for Opposing Party's Counsel Fees, 56 A.L.R. 4th 486 (1987).

In reaching their conclusions, many jurisdictions rely upon the United States Supreme Court's decision in Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980), in which the Court held that federal district courts have the inherent authority to impose attorneys' fees against counsel for "bad faith" conduct. As explained in Roadway Express, the "power of a court over members of its bar is at least as great as its authority over litigants. If a court may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes." Id. (footnote omitted). The Supreme Court followed Roadway Express in Chambers v. NASCO, Inc., 501 U.S. 32, 50, 115 L. Ed. 2d 27, 111 S. Ct. 2123 (1991),  [*13]  in which it explained:
 
A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. Furthermore, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the [Federal] Rules [of Civil Procedure], the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.
 
(Citation omitted.) The Supreme Court has explained, however, that a "specific finding as to whether counsel's conduct . . . constituted or was tantamount to bad faith" is a necessary precedent to any sanction of attorney's fees under the trial court's inherent authority. Roadway Express, 447 U.S. at 767.

We thus hold that a trial court possesses the inherent authority to impose attorneys' fees against an attorney for bad faith conduct. In exercising this inherent authority, an appropriate balance must be struck between condemning as unprofessional  [*14]  or unethical litigation tactics undertaken solely for bad faith purposes, while ensuring that attorneys will not be deterred from pursuing lawful claims, issues, or defenses on behalf of their clients or from their obligation as an advocate to zealously assert the clients' interests. The inherent authority of the trial court, like the power of contempt, carries with it the obligation of restrained use and due process. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 We note that the actions in this case could not have been disciplined through the trial court's contempt power, because the contempt power is based on the failure to obey a specific judgment or order of the court. See generally Parisi v. Broward County, 769 So. 2d 359 (Fla. 2000); see also Levin, Middlebrooks, 639 So. 2d at 609 ("[A] trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity by imposing a compensatory fine as punishment for contempt."); § 38.23, Fla. Stat. (1997) (providing for exercise of contempt power where a party has failed to abide by "any legal order, mandate or decree, made or given by any judge").
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*15]  

Accordingly, we conclude that the trial court's exercise of the inherent authority to assess attorneys' fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys' fees. Thus, a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings. In addition, the amount of the award of attorneys' fees must be directly related to the attorneys' fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney. Moreover, such a sanction is appropriate only after notice and an opportunity to be heard--including the opportunity to present witnesses and other evidence. Finally, if a specific statute or rule applies, the trial court should rely on the applicable rule or statute rather than on inherent authority. See Chambers, 501 U.S. at 50 ("Furthermore, when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules  [*16]  rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent authority.").

With regard to the conflict cases, we disapprove the decisions in Israel and Miller to the extent that they rejected the inherent authority of the trial court as a basis for awarding attorneys' fees. We do not decide whether the award of attorneys' fees would have been proper in those cases.

In this case, we conclude that the Third District's decision must be quashed because the trial court did not make an express finding of bad faith, and did not provide the attorney notice and an opportunity to be heard before imposing the attorneys' fees. Instead, the trial court merely found that there was no reasonable explanation for the issuance of the subpoena. See Moakley, 730 So. 2d at 287. Therefore, although we approve of the Third District's recognition of the inherent authority of the trial court to assess attorneys' fees, we quash the decision below in accordance with this opinion.

It is so ordered.
 
SHAW, HARDING, ANSTEAD, and QUINCE, JJ., concur.
 
WELLS,  [*17]  C.J., concurs in result only with an opinion.
 
LEWIS, J., concurs in result only.
CONCURBY:   WELLS
 CONCUR:   WELLS, C.J., concurring in result only.

I concur only in quashing the district court decision.

I do not join the majority's opinion because I conclude that it is not in accord with this Court's precedent. In Burns v. Huffstetler, 433 So. 2d 964 (Fla. 1983), this Court said:

There are three alternative methods for the disciplining of attorneys, and the first two procedures derive directly from this Court's delegation of its power to regulate the practice of law in Florida, as conferred by article V, section 15, Florida Constitution. The first alternative is the traditional grievance committee-referee process in which an attorney is prosecuted by The Florida Bar under the direction of the Board of Governors. Under this procedure, sanctions are imposed by the Supreme Court after the Court considers the referee's recommendations. See Fla. Bar Integr. Rule, art XI, Rules 11.02-11.13. The second alternative is a procedure initiated by the judiciary with the state attorney prosecuting. Judgment is entered by the trial court and is subject to review by the supreme  [*18]  court. See Fla. Bar Integr. Rule, art. XI, Rule 11.14. The third alternative is the exercise of the inherent power of the courts to impose contempt sanctions on attorneys for lesser infractions, a procedure which this Court expressly approved in Shelley v. District Court of Appeal, 350 So. 2d 471 (Fla. 1977).
 
Id 433 So. 2d at 965.

The present majority introduces a new basis for sanctioning lawyers through the imposition of monetary sanctions against an attorney for "bad faith conduct." Majority op. at 12. My problem with this is that, apparently, this is a sanction which comes within neither attorney discipline procedures nor the Court's contempt power. Therefore, there are no procedures to apply to the application of this sanction, nor are there definitions of bad faith or limitations on the sanctions. The majority holds, in its footnote 3, that the justification for finding the Court's power to impose the new sanction is because "the actions in this case could not have been disciplined through the trial court's contempt power, because the contempt power is based on the failure to obey a specific judgment or order of the court." Majority op. at 12, note 2. This statement  [*19]  makes it clear that the bad-faith sanction is broader than contempt.

I recognize that the majority states that the trial judge must make an express finding of bad faith, set out detailed factual findings, and give notice and an opportunity to be heard. However, bad faith is not defined. What is bad faith in the subjective view of one judge is in all likelihood not going to be bad faith to another. Lawyers will not have notice of the boundaries of "bad faith." Furthermore, I do not know on what basis a lawyer could get appellate relief from a trial court's determination of "bad faith." Clearly, the review would be an "abuse of discretion," but without a specific definition of "bad faith," on what basis can there be an abuse of discretion?

The majority likewise does not set any limits on the monetary sanctions which the trial court can impose. Are the sanctions limited to attorney fees actually expended by the aggrieved party, or are the monetary sanctions to be punitive, as a fine would be in a contempt situation?

Based upon my experience as a litigator, it is tempting to join the majority because I certainly have witnessed firsthand the type of lawyer abuse which the majority is  [*20]  desirous of sanctioning. Since I have been on this Court, I am aware of instances of lawyer abuse which should have been sanctioned but was not, for the likely reason that the trial judge did not feel that there was an effective way to do it.

I deplore this abuse, but I have to weigh this against the problems I foresee with opening a new way to sanction lawyers which has the lack of specificity resulting from this opinion. As clearly as the judicial system needs to be protected from this type of lawyer abuse, the judicial system has to also be protected against restraining lawyers in work on innovative and unpopular causes and in innovative ways which to some trial judges could appear to be "bad faith." Lawyers cannot be placed in a position of fearing monetary exposure based upon decisions which cannot be effectively reviewed by appellate courts. Frankly, I am concerned about arbitrary or intimidating applications of undefined and unlimited "bad faith" sanctions.

Rather than announcing this change in the ways lawyers can be sanctioned in this opinion, which in fact quashes the approval of such sanctions, I conclude it would be better to have the rules committees develop rules in  [*21]  which "bad faith" is defined and the sanctions specified. In that way, the Bar can debate the issues and present to the Court a proposal that has been fully and fairly scrutinized.

Therefore, I would quash the district court's decision and remand with instructions that in this case the trial court's award of monetary sanctions be stricken. I would join in sending the issue of bad faith sanctions against lawyers to the rules committees.
 
 
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« Reply #27 on: June 29, 2006, 05:03:49 PM » Quote

--------------------------------------------------------------------------------

CoA accrual at breach cases, according to none other than Asset Acceptance:

(the big one, Fradley v, County of Dade, is at the end)


This is how Asset Acceptance couched their argument:

It is well settled in this jurisdiction and elsewhere, that a cause of action for breach of
contract accrues and, therefore, the statute of limitations begins to run, at the time of the breach.


A. F. Pylant, Inc. v Escambia Treating Co. 276 F.2d 924 (Fla. CA5 1960);

Briggs v Fitzpatrick 79  So 2d 848 (Fla. 1955);

In re Shambow's Estate 153 Fla. 762, 15 So 2d 837 (18 Kan. 1041943);

Roth v State Farm Mut. Auto. Ins. Co. 581 So 2d 981, 16 FLW D 1647 (Fla. 2nd DCA 1991);

Donovan v State Farm Fire & Casualty Co. 574 So 2d 285 (Fla. 2nd D.C.A, 1991);

Mason v Yamms 483 So 2d 832, 11 FLW 541 (Fla. 2nd DCA, 1986);

Aetna Cas. & Sur. Co. v Board of Public Instruction 795 So 2d 4(Fla. 2nd DCA 1967) 7;

Fradlev v County of Dade 187 So 2d 48 (Fla. 3rd DCA 1966).
 
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« Reply #28 on: June 29, 2006, 05:09:30 PM » Quote

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More UE

There is no dispute that under Florida law, the general rule is that if the complaint on its face shows that adequate legal remedies exist, equitable remedies are not available.   See e.g. H.L. McNorton v. Pan American Bank of Orlando, 387 So.2d 393, 399 (Fla. 5th DCA 1980).   However, this doctrine does not apply to claims for unjust enrichment
Id. [ThunderWave v. Carnival Corp., 954 F.Supp. 1562] at 1565-1566.  


a fraud claim can be based on misrepresentations as to past experience, see Eastern Cement v. Halliburton Co., 600 So.2d 469 (Fla. 4th DCA 1992), or promises of future action where at the time the statement was made the maker had no intent to perform.  Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168 (Fla. 4th DCA 1994)

A claim for unjust enrichment is an equitable claim, based on a legal fiction created by courts to imply a "contract" as a mater of law
"the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Greenfield , 705 So.2d at 931
See Greenfield v. Manor Care, Inc. , 705 So. 2d 926, 930-31 (Fla. Dist. Ct. App. 1997), rev. denied , 717 So. 2d 534 (Fla. 1998).

To grant judgment as a matter of law, the court must determine that there is such overwhelming evidence in favor of the movant that a reasonable and fair-minded juror could not arrive at a contrary verdict. See Carter v. City of Miami , 870 F.2d 578, 581 (11th Cir. 1989) (citing Miles v. Tennessee River Pulp & Paper Co. , 862 F.2d 1525 (11th Cir. 1989)).
the trial judge granted Utensili's motion for judgment as a matter of law, dismissing Tooltrend's unjust enrichment claim, and, alternatively, granting Utensili's motion for a new trial, thus setting aside the damage award
We review de novo a trial court's order granting judgment as a matter of law. See Ortega v. Schramm , 922 F.2d 684, 694 (11th Cir. 1991).

It derives, not from a "real" contract but a "quasi-contract." See Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co. , 695 So.2d 383, 386 (Fla. Dist. Ct. App. 1997) (en banc). To succeed in a suit for unjust enrichment a plaintiff must prove that:
(1) the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant has voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.
See Greenfield v. Manor Care, Inc. , 705 So. 2d 926, 930-31 (Fla. Dist. Ct. App. 1997), rev. denied , 717 So. 2d 534 (Fla. 1998).


The elements of an unjust enrichment claim are "a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, and the defendant's acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof." Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So. 2d 205, 207 (Fla. 2d DCA 1995) .
 
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« Reply #29 on: June 29, 2006, 05:14:14 PM » Quote

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This is what you close out your summary judgment argument: paper issues aren't material issues.

All of these competent facts render the adverse party’s pleadings as mere paper issues as defined by
Hardcastle v. Mobley, 143 So.2d 715, Fla. 3rd 3 DCA 1962, and
Connolly v. Sebeco, Inc., 89 So.2d 482, Fla. 1956

 
 The statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to as cause of action.”
City of Miami v. Brooks 70 So.2d 306, (Fla. 1954)

“Generally, under Florida law, the statute of limitations begins to run when a person has notice of an invasion of legal rights or notice of his right to a cause of action.” Laney v. American Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003)

“Intent of statute setting forth limitations period for contract actions is to limit commencement of actions from time of their accrual.”
“Generally, cause of action on contract accrues and statute of limitations begins to run from time of breach of contract.”
State Farm Mutual Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla. 1996)

“A cause of action on an oral loan payable on demand accrues, and the statute of limitations begins to runs, at the time when demand for payment is made.” Mosher v. Anderson, 817 So.2d 812 (Fla. 2002)
 
 
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« Reply #31 on: June 29, 2006, 05:15:32 PM » Quote

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 “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”
McGill v. Cockrell, 101 So. 199 (Fla. 1924) Id. at 201.
 
 
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« Reply #32 on: June 29, 2006, 05:21:05 PM » Quote

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“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought and the writing is signed by the party to be charged and there is consideration for the promise, there is a contractual obligation in writing.”
“we found that the language of this agreement is sufficient and has the essential elements cited hereinabove to determine the obligations of the respective parties and thus, we found that the subject action is founded on instruments of writing and , therefore, the five-tear SoL is applicable.”
Mercy Hospital, Inc. v Carr, 297 So.2d 598 (Fla. App. 3 Dist. 1974) citing Meehan and Gulf Life.

“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought, and the writing is signed by the party to be charged, and there is consideration for the promise, there is a contractual obligation in writing even though other terms of the agreement may be vague or indefinite.”
Meehan v. Grimaldi & Grimaldi, Inc. 240 F.2d 775 (C.A. 5 1957)


“In applying the statute of limitations, where the “evidence of liability” relied on is partly set forth in writings in the form of letters and the like, but the letters are incomplete in themselves, or are so indefinite as to necessitate and make unavoidable plaintiff’s resort to oral testimony to make complete the showing of any legal liability incurred by the defendant, under the terms of the transaction of which the writings are made a part, such agreement, partly written and partly oral, must be regarded as an oral contract, the liability arising under which is not founded upon an instrument of writing.”

“The writings relied on do not constitute a contractual acknowledgment of the loan of money by plaintiff to the defendant, which is the thing sued for, therefore, such writings can avail nothing to the plaintiff as a sufficient conclusion to the bar of the statute of limitations”
Johnson v. Harrison Hardware & Furniture Co., 160 So. 878 (Fla. 1935) citing McGill v. Cockrell.

 
 
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« Reply #33 on: June 29, 2006, 05:22:12 PM » Quote

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Use this to argue no proof of bona fide assignment:


“Person not a party to nor in privy with a contract does not have right to sue for its breach.”
White v. Exchange Corp.167 So.2d 324 (Fla. 3rd DCA 1964)

 
 
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« Reply #34 on: June 29, 2006, 05:26:58 PM » Quote

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McGill v. Cockrell was about a promise to pay (may have been implied, I don't recall) in a letter requesting legal services.

Does the instrument create a right?
A promise to pay a reasonable sum

McGill v. Cockrell, 101 So. 199 (Fla. 1924)
McGill v. Cockrell weighs “where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.
Where no resort to parol evidence is necessary to make the agreement complete.
It was complete when she wrote ….
McGill decided the writing was sufficient to constitute a contract.
Lacking mutuality to start with, it became binding on her after performance on the promise.
It was a written request for professional services to be rendered in a certain matter of litigation and Cockrell became entitled to his compensation under the contract, not upon quantum meruit upon performance by the promise.
“What the law implies from the relation of parties created by an express agreement is as much a part of the contract as that which is expressed.” Taken from Bishop on Contracts.  
 
 
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« Reply #35 on: June 29, 2006, 05:28:36 PM » Quote

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“To prevail on motion for summary judgment based on statute of limitations … moving party must conclusively demonstrate that there is no disputed issue of material fact as to when nonmoving party discovered or should have discovered invasion of his or her legal rights.” Keller v. Reed, 603 So.2d 717, Fla. App. 3 Dist., 1992.
 
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« Reply #36 on: June 29, 2006, 05:29:54 PM » Quote

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Trumped by 95.051(2) (Fla. 1974):

“It is indeed a Florida doctrine that such an acknowledgement (promise to pay) – even an oral one if it is made prior to the expiration of the limitations period – has the effect of restarting the statute from the date of the new promise.”
Jacksonville American Publishing Co. v. Jacksonville Paper Co., 197 So. 672 (Fla. 1940)
Kitchens v. Kitchens, 142 So.2d 343 (Fla. App. 2 Dist. 1962)
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« Reply #2 on: September 11, 2006, 01:53:46 PM »

Documents can be be aggregated to have the effect of one:


“Several writings, such as letters or telegrams, may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.”
Edgewater Beach Corp. v. Sugarman, 15 So.2d 260 (Fla. 1943)

“A complete contract may be gathered from such writings and be so connected with each other as to constitute one paper.”
McCay v. Seaver, 124 So. 44 (Fla. 1929)
Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla. 1927)

“Where several different writings constitute a contract, they will be construed together.” Maas Bros., inc. v. Dickinson, 195 So.2d 193 (Fla. 1967)

 
 
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« Reply #38 on: June 29, 2006, 05:33:06 PM » Quote

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Open Account CoA relevant case law:


“An open account is a debt created by a series of credit transactions.”
“An action on an open account accrues when the last payment on the account falls due.”
Hawkins v, Barnes, 661 So.2d 1271, Fla. App. 5 Dist. 1995.


“An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient.” H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994)

“An open account is an unsettled claim or demand by one person against another, arising from items of labor and goods sold and delivered, with the expectation of further transaction subject to future settlements and adjustment.”                                                              Central Insurance Underwriters. Inc. v. National Insurance Finance Co., 599 So.2d 1371 (Fla. App. 3 Dist. 1992)

“This type of account must be based on a transaction creating a debtor and creditor relationship between the parties that usually, but not necessarily, is represented by records kept by one of both of them.”     Creditor’s and Debtor’s Practice in Florida, Unsecured Claims , pg 2-5

“One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114.

“The elements of an action on an open account are that (1) a sales contract existed between the creditor and the debtor; (2) the amount claimed by the creditor represents either an agreed-on sales price or the reasonable values of the goods delivered; and (3) the goods were actually delivered.”  Evans v. Delro Industries, Inc., 509 So.2d 1262 (Fla. App. 1 Dist. 1987)
 
 
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« Reply #39 on: June 29, 2006, 05:35:02 PM » Quote

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MSJ cases

“When the record reflects the possibility or slightest doubt that an issue exists, summary judgment is improper.” Athans v. Soble, 553 So.2d 1361 (Fla. App. 2 Dist. 1989)


“When affirmative defenses are asserted, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency.”
Howdeshell v. First Nat’l Bank of Clearwater, 369 So.2d 432 (Fla. App. 2 Dist. 1979)
Accord Proprietors Ins. Co. v. Siegel, 410 So.2d 993 (Fla. App. 3 Dist. 1982)


“Summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.”
Pandol Bros. v. NCNB Nat’l Bank of Fla., 450 So.2d 592 (Fla. App. 4 Dist. 1984)
 
 
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« Reply #40 on: June 29, 2006, 05:41:44 PM » Quote

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Assignment

Fla Jur 2d, Assignment

s. 1 Generally; Definitions and distinctions

An unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, and the assignor has no right to make any claim on the contract once the assignment is complete; unless authorized to do so by the assignee.
Hartford Ins. Co. of Midwest v. O’Connor, 855 So.2d 189 (Fla. App. 5 Dist. 2003)

An assignment generally refers to or connotes a voluntary act of transferring an interest.
DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill., 193 So.2d 224 (Fla. App. 3 Dist. 1966), judgment aff’d, 202 So.2d 561 (Fla. 1967)

An “assignment” has been defined as a contract to transfer a complete and present interest in property or some other right, from the assignor to the assignee, limited in its application to a transfer of intangible rights, including contractual rights, choses in action, and rights in or connected with property, as distinguished from a transfer of the property itself.
Am Jur 2d, Assignments s. 1.

An “assignor” is a person who assigns or transfers property to another, while an “assignee” is one to whom an assignment is made.
Am Jur 2d, Assignments s. 6

“Assigns” are those person to whom property is, will, or may be assigned, either immediately or remotely, from or under an assignor, whether by conveyance, devise, descent, or act or law.
Am Jur 2d, Assignments s. 7

A “chose in action” is defined as a right to personal things of which the owner has not the possession, but merely a right of action for the possession.
Spears v. West Coast Builders’ Supply Co., 101 Fla. 980, 133 So. 97 (1931)

To be distinguished from assignment is the doctrine of subrogation, under which an insurer is substituted, by operation of law, to the rights of an insured; by contrast, an assignment generally refers to or connotes a voluntary act of transferring an interest.
DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill., 193 So.2d 224 (Fla. App. 3 Dist. 1966), judgment aff’d, 202 So.2d 561 (Fla. 1967)

Where an agreement, on its face, appears to be a valid assignment agreement effecting a sale of contracts and notes, affidavits asserting that the purpose of the assignment is to effect a disguised usurious loan are insufficient to create a genuine issue of fact.
Foster v. Weber, 587 So.2d 857, 16 Fla. L. Weekly 1180 (Fla. App. 5 Dist. 1991)

s. 2 Equitable Assignments

Certain kinds of instruments have been recognized by the courts as valid equitable assignments, where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be unjust.
Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. App. 5 Dist. 1984)

No particular words or form of instrument is necessary to effect an equitable assignment, and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive it, if there is a valuable consideration, will operate as an effective equitable assignment.
Fla Jur 2d, Assignment, s. 18.

The true test of equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee.
Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. App. 5 Dist. 1984)

Any order, writing, or act which plainly makes an appropriation of a fund or debt, or a part of a fund or debt, may constitute an equitable assignment.
McClure v. Century Estates, 96 Fla. 568, 120 So. 4 (1928)

An equitable assignment may be parol, or partly in writing and partly oral, and may be completed merely by delivery of the subject assigned.
McClure v. Century Estates, 96 Fla. 568, 120 So. 4 (1928)
Sammis v. L’Engle, 19 Fla. 800, 1883 WL 2602(1883)

An equitable assignment has been distinguished from a legal assignment in that a legal assignment relates to a thing in being, while an equitable assignment relates to contingent interests, expectancies, and things potential.
Am Jur 2d, Assignments s. 5.

ASSIGNABLE RIGHTS, CLAIMS, AND INTERESTS

s. 3 Generally

As a result of the gradual adoption of equitable principles in the law courts, under modern law, assignments are freely made of a large body of rights which were unassignable under the early common law.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)

Consequently, rights of action, choses in action, future or contingent interests, possible and existing estates or interests are assignable by statute or in equity, although the reverse was true under the common law.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)
Trak Micowave Corp. v. Medaris Management, Inc., 236 So.2d 189 (Fla. App. 4 Dist. 1970)

s. 4 Choses in action

Assignability of choses in action is the rule rather than the exception, and practically the only classes of choses in action which are not assignable are those for personal torts and those based on contracts of a purely personal nature.
Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490, 19 Fla. L. Weekly D2117 (Fla. App. 3 Dist. 1994) , reh’g denied, (Dec 21, 1994)

Thus, parties can generally assign causes of action derived from a contract.
Fla Jur 2d Assignment, sections 6-10

Under former law, the general test of assignability of choses in action was whether the chose would survive the death of the assignor; rights which were strictly personal and which dies with the person were unassignable.
Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla. App. 4 Dist. 1969)

Currently, it is provided by statute that no chose of action dies with the person, and that all causes of action survive.
F.S. 46.021, discussed in Fla. Jur 2d, Actions

Choses of action arising out of contract are assignable and may be sued upon and recovered by the assignee in his own name and right.
Spears v. West Coast Builders’ Supply Co., 101 Fla. 980, 133 So. 97 (1931)
United Companies Life Ins., Co. v. State Farm and Fire Cas. Co., 477 So.2d 645, 10 Fla. L. Weekly 2387 (Fla. App. 1 Dist. 1985)

s. 5  Future Interests

While future or contingent interests and possible and existing estates or interest were no assignable under the common law, present Florida law permits assignment of future or contingent interests, rights of action, choses in action, and possible and existing estates or interests.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)

A vested interest which is to be realized in the future is assignable.
Richardson v. Holman, 160 Fla. 65, 33 So.2d 641 (1948)

CONTRACT RIGHTS

s. 6 Generally

Generally, causes of action derived from a contract are assignable.
Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557, 22 Fla. L. Weekly S704 (Fla. 1997), answer to certified question conformed to, 132 F.3d 645 (11th Cir. 1998)
Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 25 Fla. L. Weekly D118 (Fla. App. 1 Dist. 2000), reh’g denied, (Mar. 22, 2000) and review denied, 776 So.2d 274 (Fla. 2000)
National Union Fire Ins. Co. v. Salter, 717 So.2d 141, 23 Fla. L. Weekly D2105 (Fla. App. 5 Dist. 1998), review denied, 727 So.2d 908 (Fla. 1999)
W.S. Badcock Corp. v. Webb, 699 So.2d 859, 22 Fla. L. Weekly D2316 (Fla. App. 5 Dist. 1997)
Aaron v. Allstate Ins. Co., 559 So.2d 275, 15 Fla. L. Weekly D802 (Fla. App. 4 Dist. 1990)
Hall v. O’Neil Turpentine Co., 56 Fla. 324, 47 So. 609 (1908)
New Holland, Inc. v. Trunk, 579 So.2d 215, 16 Fla. L. Weekly 1120 (Fla. App. 5 Dist. 1991)

Contract rights can be assigned unless forbidden by the terms of the contract itself, or unless the assignment would violate some rule of public policy or some statute, or the contract rights involve obligations of a personal nature.
Restatement, Contracts 2d, s. 317

The assignee of rights and responsibilities under a contract is entitled to pursue any cause of action belonging to the assignor for breach of contract, regardless of whether breach occurred prior to the assignee’s receiving the assignment.
Escandar v. Southern Management and Inv. Corp., 534 So.2d 1203, 13 Fla. L. Weekly 2572 (Fla. App. 3 Dist. 1988)

If an assignee seeks to enforce an identified contract, he must show that all conditions have been performed either by himself or by the assignor.
Shreve Land Co., Inc. v. J & D Financial Corp., 421 So.2d 722, 35 U.C.C. Rep. Serv. 429 (Fla. App. 3 Dist. 1982)

REQUISITES OF A VALID ASSIGNMENT

s. 18 Generally

Except in cases where a writing is required by statute, an assignment may be by parol, as well as by deed or other writing.
Tunno v. Robert, 16 Fla. 738, 1878 WL 2255 (1878)
Mangum v. Susser, 764 So.2d 653, 25 Fla. L Weekly D1216 (Fla. App. 1 Dist. 2000)
Protection House, Inc. v. Daverman and Associates, 167 So.2d 65 (Fla. App. 3 Dist. 1964)

It has been held that no particular words or form of instrument is necessary to create an equitable assignment and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive, if there is a valuable consideration, will operate as an effective assignment.
Giles v. Sun Bank, N.A., 450 So.2d 258 (Fla. App. 5 Dist. 1984)

In order for the assignee of a claim on an open account for goods sold and delivered by the assignor to recover against the debtor’s guarantor, it is incumbent on the assignee to allege and prove the existence of a valid open account claim for the goods sold by the assignor to the debtor.
Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22 (Fla. App. 2 Dist. 1979)

The mere sale of personal property does not convey to the buyer any causes of action the seller may have with respect to such property, absent a specific assignment to the effect.
Schmidgall v. Jones Boatyard, Inc., 526 So.2d 1042, 13 Fla. L. Weekly 1452 (Fla. App. 3 Dist. 1988), related reference, 588 So.2d 1033, 16 Fla. L. Weekly D2793 (Fla. App. 3 Dist. 1991), jurisdiction accepted, 599 So.2d 657 (Fla. 1992) and opinion approved of, 611 So.2d 512, 18 Fla. L. Weekly S43 (Fla. 1993)

s. 19 Consideration

A valuable consideration is essential to support an assignment.
Am Jur 2d, Assignments s. 128

While particular attempted assignments have been held invalid for lack of consideration.
Auerbach v. McKinney, 549 So.2d 1022, 14 Fla. l. Weekly 1516 (Fla. App. 3 Dist. 1989)

In other instances, assignments have been found to be supported by sufficient consideration.
Aaron v. Allstate Ins. Co., 559 So.2d 275, 15 Fla. L. Weekly D802 (Fla. App. 4 Dist. 1990)

The affirmative defense of lack of consideration can be raised only by the assignor.
McCampbell v. Aloma Nat. Bank of Winter Park, 185 So.2d 756 (Fla. App. 1 Dist. 1966)

It is provided by statute that it is unnecessary for the plaintiff, in any action on an instrument assignable by law, to allege the consideration on which the instrument was given or on which the assignment was made, or to prove the consideration or the execution of the instrument, unless it is denied by the defendant under oath.
F.S. 68.06, discussed in Fla Jur 2d, Bonds.

s. 20 Delivery

Delivery and acceptance of possession is essential to the consummation of the assignment of a chose in action.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)





For an assignee of a chose in action to acquire the right to stand in the shoes of the assigning creditor, he must acquire some “delivery” or “possession” of the debt constituting a means of clearly establish his right to collect; delivery of notice of assignment to the debtor fixes accountability of the debtor to the assignee.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

Proper notice to the debtor of the assignment is a manifestation of such delivery.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

The delivery of a written assignment is sufficient to vest in the assignee the legal interest assigned, and the absence of a seal on the assignment does not affect its validity.
Cotton v. Williams, 1 Fla. 37, 1846 WL 999 (1846)

s. 21 Notice to debtor

It is generally held that notice to the debtor is not necessary to the validity of an assignment of a debt or chose in action.
Walters v. Whitlock, 9 Fla. 86, 1860 WL 2046 (1860)

However, since an assignment itself does not constitute sufficient notice directing the debtor to pay the assignee, as opposed to the creditor, where there is nothing in the assignment requiring the debtor to pay the assignee,
City of North Miami v. American Fidelity Fire Ins. Co., 505 so.2d 511, 12 Fla. L. Weekly 849, 3 U.C.C. Rep. Serv.2d 837(Fla. App. 3 Dist. 1987)

Notice in necessary to charge the debtor with the duty of payment  to the assignee.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

Proper notice to the debtor of an assignment is a manifestation of the delivery and acceptance which is essential to the consummation of an assignment, although notice to the debtor is not the only method of effecting a delivery of possession so as to put subsequent interests on notice of a prior assignment.
Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965)

An assignment of accounts receivable is perfected if the account debtor has actual notice of the assignment, regardless of whether such notice comes from the assignee, before it pays out monies owed to the creditor.
Capital City Second Nat. Bank v. Peavy & Son Const. Co., Inc., 585 So.2d 1123, 16 U.C.C. Rep. Serv.2d 1240 (Fla. App. 1 Dist. 1991)

CONSTRUCTION, OPERATION, AND EFFECT OF ASSIGNMENT

s. 23 Generally

An assignment transfers to the assignee all the interest and rights of the assignor in and to the thing assigned.
U.S. v. Eleven Thousand Five Hundred and Eighty Dollars ($11,580) in U.S. Currency, 454 F.Supp 376 (M.D. Fla. 1978)
Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 25 Fla. L. Weekly D118 (Fla. App. 1 Dist. 2000), reh’g denied, (Mar 22, 2000) and review denied, 776 So.2d 274 (Fla. 2000)
Rose v. Teitler, 736 So.2d 122, 24 Fla. L. Weekly D1465 (Fla. App. 4 Dist. 199)
State v. Family Bank of Hallandale, 667 So.2d 257, 20 Fla. l. Weekly D1992, 27 U.C.C. Rep. Serv.2d 638 (Fla. App. 1 Dist. 1995)

Assignment normally involves only the assignee’s acquiring the rights of the assignor and not necessarily the obligations, unless it is found that the assignment was also a novation.
Fla Jur 2d, Assignment, s. 26

An assignee may enforce payment or performance of an obligation due under the contract.
Superior Ins. Co. v. Libert, 776 So.2d 360, 26 Fla. L. Weekly D381 (Fla. App. 5 Dist. 2001)

And because an unqualified assignment transfers to the assignee all of the interest of the assignor under the assigned contract, the assignor has no right to make any claim in the contract once the assignment is complete, unless authorized to do so by the assignee.
Superior Ins. Co. v. Libert, 776 So.2d 360, 26 Fla. L. Weekly D381 (Fla. App. 5 Dist. 2001)

The assignee of rights and responsibilities under a contract is entitled to pursue any cause of action belonging to the assignor for breach of that contract, regardless of whether the breach occurred prior to the assignee’s receiving the assignment.
Escandar v. Southern Management and Inv. Corp., 534 So.2d 1203, 13 Fla. L. Weekly 2572 (Fla. App. 3 Dist. 1988)


s. 24 Construction of assignment

An assignment will ordinarily be construed in accordance with the general rules of construction governing contracts, in light of the circumstances surrounding the execution of the assignment, in order to ascertain and effectuate the intention of the parties.
Am Jur 2d, Assignments, s. 145

In construing an assignment, the court must determine (1) exactly what has been assigned to make certain that the plaintiff-assignee is the real party in interest, and (2) that a valid assignment has been made.
University Creek Associates, II, Ltd. v. Boston American Financial Group, Inc, 100 F. Supp.2d 1337 (S.D. Fla. 1998), related reference, 100 F. Supp. 2d 1341 (S.D. Fla. 1999), related references, 100 F. Supp. 2d 1345 (S.D. Fla. 2000), related reference, 101 F.Supp.2d 1370 (S.D. Fla. 2000)

s. 25 Applicability of equities and defenses

The assignee steps into the shoes of his assignor, and is subject to the equities and defenses that could have been asserted against the assignor had the assignment not been made.
Angora Enterprises, Inc.v. Cole, 430 So.2d 832 (Fla. 1983), related reference, 464 So.2d 229, 10 Fla. L. Weekly 509, (Fla. App. 4 Dist. 1985) and appeal after remand, 512 So.2d 349, 12 Fla. L. Weekly 2243 (Fla. App. 4 Dist. 1987)
Department of Revenue v. Bank of America, N.A., 752 So.2d 637, 25 Fla. L. Weekly D118 (Fla. App. 1 Dist. 2000), reh’g denied (Mar 22, 2000) and review denied, 776 So.2d 274 (Fla. 2000)
State v. Family Bank of Hallandale, 667 So.2d 257, 20 Fla. l. Weekly D1992, 27 U.C.C. Rep. Serv.2d 638 (Fla. App. 1 Dist. 1995)
Cadle Co. II, Inc. v. Stamm, 633 So.2d 45, 19 Fla. L. Weekly D295 (Fla. App. 1 Dist. 1994)
City Nat. Bank of Coral Gables v. H. & B. Const. Corp., 183 So.2d 704 (Fla. App. 3 Dist. 1966)
An assignee has no greater right than his assignor; consequently, it cannot be argued that a valid assignment may breathe life into the assigned instrument otherwise invalid.
Crossman v. Fontainebleau Hotel Corp., 273 F.2d 720, 80 A.L.R.2d 415 (5th Cir. 1959)
An assignee of an account takes the account subject to all outstanding equities, and cannot occupy a better position than the assignor.
Prestress Erectors, Inc. v. James Talcott, Inc., 213 So.2d 296 (Fla. App. 3 Dist. 1968)

The law is well settled that an assignee succeeds to his assignor’s rights under the assignment of a contract and takes it with all the burdens to which it is subject in the hands of the assignor.
Suniland Associates, Ltd. v. Wilbenka, Inc., 656 So.2d 1356, 20 Fla. L. Weekly D1454 (Fla. App. 3 Dist. 1995)

Thus, an assignee takes the assignment subject to such defenses as fraud or the operation of a statute of limitations.

In addition, a purchaser may properly assert a setoff against the purchase price owed the seller’s assignee for the loss suffered as a result of the assignor’s failure to deliver the total number of units it had contracted to purchase.
Shreve Land Co., Inc. v. J & D Financial Corp., 421 So.2d 722, 35 U.C.C. Rep. Serv. 429 (Fla. App. 3 Dist. 1982)

An obligor may not set off, against an assignee, an independent demand against an assignor which is in no way connected with the obligation assigned and which does not mutually exist between the obligor and assignee at the time the action is brought.
Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

Thus, a counterclaim which was acquired by a debtor after he received notice of the assignment is not available against the assignee.

Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

As a general rule, the assignee of a non-negotiable instrument or other chose in action takes it with all the rights of the assignor, and subject to all of the equities and defenses of the debtor connected with, or growing out of, the transaction itself that the obligor had against the assignor at the time of the assignment.
Union Indemnity Co. v. City of New Smyrna, 100 Fla. 980, 130 S0. 453 (1930)
Florida East Coast Ry. Co. v. Eno, 99 Fla. 887, 128 So. 622, 70 A.L.R. 506 (1930)
Mason v. Flowers, 91 Fla. 224, 107 So.334 (1926)
Haughey v. Heaney, 89 Fla. 102, 103 So. 400 (1925)
Birmingham Trust & Sav. Co. v. Jackson County Mill Co., 41 Fla. 498, 27 So. 43 (1899)
Fred S. Conrad Const. Co. v. Exchange Bank of St. Augustine, 178 So.2d 217 (Fla. App. 1 Dist. 1965)
 Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

The assignee of a nonnegotiable right acquires no better right than the assignor had, notwithstanding his belief or good faith.
Town of River Junction, Fla. v. Maryland Cas. Co., 133 F.2d 57 (C.C.A. 5th Cir. 1943)

It is fundamental that the assignee of a contract or nonnegotiable chose in action occupies the same position as its assignor and is subject to the same equities, conditions, and defenses that could have been asserted against the assignor.
Fred S. Conrad Const. Co. v. Exchange Bank of St. Augustine, 178 So.2d 217 (Fla. App. 1 Dist. 1965)

The principle that an assignee takes the assignment of a nonnegotiable chose in action subject to any defenses the debtor has against the assignor extends to counterclaims and setoffs against the assignor, which the debtor can establish to reduce the sum recoverable against him.
Nusbaum v. Riskin, 136 So.2d 1 (Fla. App. 2 Dist. 1961)

s. 28 Assignee’s right to sue in assignee’s own name

Under the Rule of Civil Procedure that an action must be brought in the name of the real party in interest,
Fla. R. Civ. P. 1.210

An assignee of a nonnegotiable chose in action may sue, in his own name, on the cause of action assigned.
Harris v. Smith, 150 Fla. 125, 7 So.2d 343 (1942)

The negotiability of an instrument is immaterial where it is assignable, in so far as the right of an assignee to bring an action thereon in his own name is concerned.
Gamble v. Malsby, 67 Fla. 30, 64 So. 437 (1914)
Vinson v. Palmer, 45 Fla. 630, 34 So.276 (1903)
Formerly, courts of law refused to recognize the transfer of nonnegotiable choses in action, and an assignee could enforce his rights at law only in the name of the assignor for the use of the assignee.
Joseph Dixon Crucible Co. v. Paul, 167 F. 784 (C.C.A. 5th Cir. 1909)
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« Reply #3 on: September 11, 2006, 01:56:55 PM »

BURDEN OF PROOF

Fla Jur 2d, Evidence, s.79

GENERALLY
s.79 Generally

The burden of proof, in its strict sense, is the duty of establishing the truth of a given proposition.
In re Ziy’s Estate, 233 So.2d 42 (Fla. 1969)
Young v. Young, 382 So.2d 355 (Fla. App. 5 Dist. 1980)

The term “burden of proof” has two distinct meanings.
By the one is meant the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises;
by the other is meant the duty of producing evidence at the beginning or at any subsequent stage of the trial, in order to make or meet a prima facie case.
In re Ziy’s Estate, 233 So.2d 42 (Fla. 1969)
Florida Dept. of Transp. v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. App. 1 Dist. 1981)

 
s. 80 Shifting of burden of proof or burden of going forward with evidence

Strictly speaking, the burden of proof does not shift during the course of the trial. It remains with the party on whom it is cast by law. Nevertheless, the phrase “burden of proof” is sometimes used in a secondary sense to designate the obligation resting on a party to meet with evidence a prima facie case presented against him or her.
Thomas Jefferson, Inc. v. Hotel Emp. Union, Local 255 (AFL), 84 so.2d 582 (Fla. 1956)

Furthermore, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as a case progresses.
In re Ziy’s Estate, 233 So.2d 42 (Fla. 1969)
Florida Dept. of Transp. v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. App. 1 Dist. 1981)

The phrase “burden of proof” is synonymous with “burden of going forward with the evidence”.
In re Ziy’s Estate, 233 So.2d 42 (Fla. 1969)

Used in this sense, the burden can shift from party to party during the course of a trial.
In re Ziy’s Estate, 233 So.2d 42 (Fla. 1969)


s. 81  Upon defendant’s failure to maintain records

Although the burden of proof ordinarily lies with the party alleging facts, in certain instances, where the adverse party is in a better position to adduce the required proof and the facts essential to the matter lie peculiarly within the knowledge of the adverse party, the burden may be allocated to the adversary unless it is clear that these matters may be sufficiently discovered by the alleging party to allow that party to go forward with the burden of proof.
Valcin v. Public Health Trust of Dade County, 473 So.2d 1297 (Fla. App. 3 Dist. 1984), approved in part, quashed in part on other grounds, 507 So.2d 596, A.L.R. 4th 895 (Fla. 1987)

When essential records are found to be either missing or inadequate through the defendant’s negligence, the result of which is that evidence peculiarly within the knowledge of the adversary is not made available to the party that has the burden of proof, the court may permit the shifting of the burden of proof  by means of a rebuttable presumption. As a prerequisite to shifting of the burden of proof, the plaintiff must establish to the satisfaction of the court that the absence of the records hinders his or her ability to establish a prima facie case.
Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 69 A.L.R.4th 895 (Fla. 1987)

In a medical malpractice case, it was permissible to allow a rebuttable presumption that a hospital or doctor acted negligently where they were unable to produce the surgical records to the plaintiff.
Public Health Trust of Dade County v. Valcin, 507 So.2d 596, 69 A.L.R.4th 895 (Fla. 1987)

PARTY ON WHOM BURDEN RESTS

Civil Cases, in general

s. 82 Generally

In civil litigation, the burden of proof is discharged by the production of a preponderance of the evidence and does not shift during the course of the trial.
In re Ziy’s Estate, 233 So.2d 42 (Fla. 1969)

As a rule, the burden of proof is, in the first instance, with the party who initiates the action or proceeding, and remains with that party so long as it continues to establish material facts essential to recovery.
Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. App. 1 Dist. 1961)

Where one party has peculiar knowledge or control of evidence on a material matter, then burden rests on that party to produce such evidence.
Metropolitan Dade County v. Hernandez, 708 So.2d 1008 (Fla. App. 3 Dist. 1998)
Jennings v. Dade County, 589 So.2d 1337 (Fla. App. 3 Dist. 1991)



Where a general or specific denial is pleaded, the burden is cast on the plaintiff to prove every material allegation of the complaint. The same rule applies in equity.
Mach v. Mayo, 80 Fla. 372, 86 So. 222 (Fla. 1920)
Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla. App. 1 Dist. 1961)
Townsend v. Giles, 133 So.2d 451 (Fla. App. 1 Dist. 1961)

Material allegations of the complaint that are denied by the answer are to be proved by the complainant.
Russell v. Stickney, 62 Fla. 569, 56 So. 691 (1911)
Griffith v. Henderson, 55 Fla. 625, 45 So. 1003 (1908)
Mayo v. Hughes, 51 Fla. 495, 40 So. 499 (1906)

Even if the court is in error in holding that the burden is upon the defendant, no harm can result to him or her if as a matter of fact the plaintiff assumes the burden and meets it.
Hartford Fire Ins. Co. v. Brown, 60 Fla. 82, 53 So. 838 (1910)

While the “preponderance of the evidence” is the generally accepted burden of proof in civil matters,
Beal Bank, SSB v. Almand and Associates, 780 So.2d 45 (Fla. 2001)

In some civil proceedings where the individual interests at stake are both particularly important and more substantial than the mere loss of money, due process places a higher burden on the state.
Pullen v. State, 802 So.2d 1113 (Fla. 2001), cert. denied, 536 U.S. 915, 122 S.Ct. 2381, 153 L. Ed.2d 199 (2002) (involuntary civil commitment proceeding)

s. 83 As to matters raised in defense

The defendant has the burden of proving his or her affirmative defenses.
Hough v. Menses, 95 So.2d  410 (Fla. 1957)
First Union Nat. Bank of Fla. v. Ruiz, 785 So.2d 589 (Fla. App. 5 Dist. 2001)
Gilreath v. General Elec. Co., 751 So.2d 705 (Fla. App. 5 Dist. 2000)
Bankers Ins. Co. v. Thomas, 684 So.2d 246 (Fla. App. 2 Dist. 1996)
Public Health Trust of Dade County v. Holmes, 646 So.2d 266 (Fla. App. 3 Dist. 1994)

The burden of going forward with the evidence as to allegations raised by an affirmative defense may shift several times in one case.
Kenwall v. Salic, 743 So.2d 1210 (Fla. App. 4 Dist.  1999)

After a plaintiff introduces adequate proof in support of his or her allegations, the duty of going forward with the evidence to rebut that given by the plaintiff is cast upon the defendant.
Sanford v. A.P. Clark Motors, 45 So.2d 185 (Fla. 19500
Byrd v. Giffen industries, Inc., 133 So.2d 482 (Fla. App. 2 Dist. 1961)

Where payment is alleged as a defense, the burden is on the party asserting the payment to establish it.
Drake Lumber Co. v. Semple, 100 Fla. 1757, 100 Fla. 1771, 130 so. 577, 75 A.L.R. 687 (1930)
Loomis v. Dubois, 82 Fla. 293, 89 So. 804 (1921)


s. 85 Contract actions

In an action on a contract, the plaintiff has the burden of establishing all the essential elements of the cause of action by a preponderance of the evidence.
Pope v. O’Brien, 213 So.2d 620 (Fla. App. 1 Dist. 1968)

Thus, to recover for a claimed breach of contract, the burden is on the plaintiff to prove the existence of the contract, the breach of the contract, and the damages resulting from that breach.
Prestige Development Group, Inc. v. Russell, 612 So.2d 691 (Fla. App. 1 Dist. 1993)
Carpenter Contractors of America, Inc. V. Fastener Corp. of America, Inc., 611 So.2d 564 (Fla. App. 4 Dist. 1992)
Knowles v. C.I.T. Corp., 346 So.2d 1042 (Fla. App. 1 Dist. 1977)


s. 102 Presumptions and inferences distinguished

Presumptions and inferences are discrete evidentiary devices.
State v. Rolle, 560 So.2d 1154 (fla. 1990)(concurring opinion)

The terms “presumption” and “inference” are used by some courts loosely or interchangeably, although they are different in nature and may be different in effect.
An inference is regarded as a permissible deduction from the evidence before the court that the jury may accept or reject, or accord such probative value as it desires, although presumption is, characteristically, a rule of law, fixed and relatively definite in its scope and effect, that attaches to certain evidentiary facts and is productive of specific procedural consequences respecting the duty of proceeding with the evidence.
Busbee v. Quarrier, 172 So.2d 17 (Fla .App. 1 Dist. 1965)
Greyhound Corp. v. Ford, 157 So.2d 427 (Fla. App 2 Dist. 1963)

In other words, presumptions differ in that when the basic fact giving rise to the presumed fact is established and there is an absence of contradictory testimony, the presumed fact must be found to exist.

An inference is a deduction of fact that the fact-finder, in his or her discretion, may logically draw from another fact or group of facts that are found to exist or are otherwise established in the action.
Law Revision Counsel Note to F.S. 90.301

An inference is a deduction from facts that reason dictates, but a presumption is an arbitrary conclusion that the law directs to be made from certain facts.
Stanek v. Houston, 165 So.2d 825 (Fla. App. 2 Dist. 1964)

The creation of a presumption has the effect of making a prima facie case without more evidence. The creation of an inference, however, merely enables the jury to draw an inference and weigh it in balance with all other evidence.
Thompson v. Miami Transit, Co., 100 So.2d 620 (Fla. 1958)
 
 
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fraudfighter
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   Re: Questions MSJ
« Reply #42 on: June 29, 2006, 05:43:58 PM » Quote

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“In absence of agreement fixing rate of interest in event of action to enforce contract, statutory interest rate applies.”
Delta D. Const. Corp. v. Triangle Marine Const. of Key West, Inc.; 567 So.2d 1010 (Fla. App. 3 Dist. 1990)


“When a contract provides for interest at not exceeding a certain rate but fixes no date or conditions on which interest is payable, the interest matures and becomes payable on same date that principal matures.”
State ex. Rel. Ben Hur Life Ass’n v. City of Hialeah, 177 So. 712 (Fla. 1937)


“Where judgment is for damages, interest may not be added to principal
award unless there can be conclusive determination of exact amount due and date from which interest can be computed.”
McCoy v. Rudd, 367 So.2d 1080 (Fla. App. 1 Dist. 1979), dismissed 370 So.2d 461.
 
 
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   Re: Questions MSJ
« Reply #43 on: June 29, 2006, 05:48:06 PM » Quote

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FL Best Evidence Rule   (it's better referred to as the Original Document Rule)

FL Jur 2d, Evidence and Witness, s. 333 Generally:

Fla D 2d, Evidence, section 157 to 187

Generally, the best evidence of the contents of a written instrument consists in the actual production of the instrument itself, and secondary evidence of its contents cannot be admitted until the nonproduction of the original has been satisfactorily account for.
Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N.Y., 179 So. 175 (Fla. 1938), 131 Fla. 94.

The unavailability of the writing must be for some reason other than the serious fault of the proponent.
Williams v. State, 386 So.2d 538 (Fla. 1980)
McKeehan v. State, 838 So.2d 1257 (Fla. App. 5 Dist. 2003)

The purpose of the best evidence rule is to ensure the accurate transmittal of critical facts contained in a writing.
Williams v. State, 386 So.2d 538 (Fla. 1980)
McKeehan v. State, 838 So.2d 1257 (Fla. App. 5 Dist. 2003)


Although the general expansion of discovery procedures and technical advances in the field of document processing and reproduction reduce the need for rigid adherence to the rule, some areas remain where the rule is useful and important, for example, the document is not practically discoverable, the document is outside the jurisdiction resulting in significant expenditure of time and money, or the document is unavailable due to the limited scope of discovery in criminal cases.
Law Revision Counsel Note to section 90.951, Fla. Stat.

Under the Florida Evidence Code, a party may prove the contents of writings by the testimony or deposition of the party against whom they are offered or by that party’s written admission, without accounting for the nonproduction of the original.
F.S. Annotated, section 90.957.


s. 334 Where writing comes up collaterally or mentioned incidentally

Fla D 2d, Evidence, section 71, 157(5)

The principle that requires production of a writing to prove its contents and excludes other proof thereof has no application when the inquiry to the contents of the writing comes up collaterally at a trial, and the contents are not directly involved in the controversy.
Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N.Y., 179 So. 175 (Fla. 1938), 131 Fla. 94.

Thus, incidental mention of the existence of a written instrument may be made without producing or accounting for absence of the instrument, where there is no attempt made tp prove the contents or legal effect of the instrument.
Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N.Y., 179 So. 175 (Fla. 1938), 131 Fla. 94.


s. 335 Definitions

Fla D 2d, Evidence, section 157(5)

For purposes of the application of the best evidence rule, under the Florida Evidence Code, writings and recordings include letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photography, magnetic impulses, mechanical or electronic recording, or other form of data compilation, upon paper, wood, stone, recording tape, or other materials.
Section 90.951(1), Fla. Stat.

An “original” of a writing or recording means the writing or recording itself, or any counterpart intended to have the same effect by a person executing or issuing it.
Section 90.951(3), Fla. Stat.

If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an original.
Section 90.951(3), Fla. Stat.

A duplicate includes a counterpart produced by the same impression as the original, from the same matrix; by means of photography, including enlargements and miniatures; by mechanical or electronic rerecording; by chemical reproduction; or by other equivalent technique that accurately reproduces the original;
Section 90.951(4)(a), Fla. Stat.

Or an executed carbon copy not intended by the parties to be an original.
Section 90.951(4)(b), Fla. Stat.
65 A.L.R. 2d 342

A fax or photocopy are duplicates of the original writings and recordings.
Van Den Borre v. State, 596 So.2d 687 (Fla. App. 4 Dist. 1992)

Manually reproduced copies, as by typing or handwriting, are excluded from the definition of duplicate.
O’Neal v. Bolling, 409 So.2d 1171 (Fla. App. 3 Dist. 1982)

A case has noted that it is unclear in Florida whether an unsigned copy of a signed document accurately reproduces the original within the meaning of the statute.
Garcia v. Lopez, 483 So.2d 470 (Fla. App. 3 Dist. 1986)


s. 336 Requirement of originals

Fla D 2d, Evidence, sections 173 to 175
 
Generally, an original is required to prove the contents of a writing.
Garcia v. Lopez, 483 So.2d 470 (Fla. App. 3 Dist. 1986)

Thus, the Florida Evidence Code, except as otherwise provided by statute, an original writing is required in order to prove the contents of the writing.
Section 90.952, Fla. Stat.

The statute, that is a restatement of the best evidence rule, is expanded to include the originals of writings, recordings, and photographs.
Law Revision Counsel Note to s. 90.952, Fla. Stat.

As codified by statute, the best evidence rule requires that if original evidence or a statutorily authorized alternative is available, no evidence should be received which is merely substitutionary in nature.
McKeehan v. State, 838 So.2d 1257 (Fla. App. 5 Dist. 2003)
State v. Eubanks, 609 So.2d 107 (Fla. App. 4 Dist. 1992)

In other words, evidence that itself indicates the existence of a more original source of information is to be excluded.
State v. Eubanks, 609 So.2d 107 (Fla. App. 4 Dist. 1992)

Thus, the best evidence rule is applicable only to exclude evidence when the contents of a writing is at issue.
State v. Eubanks, 609 So.2d 107 (Fla. App. 4 Dist. 1992)

However, a duplicate is admissible to the same extent as the original unless the writing is a negotiable instrument, a genuine question is raised about the authenticity of the original or any other writing, or it is unfair to admit the duplicate in lieu of the original.
Fla Jur 2d, Evidence, sections 339 – 344.

The original writing is required to be offered when proving the contents of the writing, absent a sufficient explanation for its unavailability.
Griem v. Zabala, 744 So.2d 1139 (Fla. app. 3 Dist. 1999)

Because a deed gives rise to a legal right, the contents of the deed are being proved; thus a deed falls within the best evidence rule.
Griem v. Zabala, 744 So.2d 1139 (Fla. app. 3 Dist. 1999)


Where the terms or contents of a written instrument are directly involved in the issues, the instrument itself is undoubtedly the best evidence of its contents, ad secondary evidence thereof cannot be admitted until the nonproduction of the original instrument has been satisfactorily accounted for.
Joseph Bucheck Const. Corp. v. W.E. Music, 420 So.2d 410 (Fla. App. 1 Dist. 1982)

The best evidence rule is not applicable if the writing is not offered to prove the truth of the matter therein.
State v. Eubanks, 609 So.2d 107 (Fla. App. 4 Dist. 1992)

The best evidence rule does not apply, and oral evidence is admissible, if the matter to be proved is the fact that a written order was made and delivered and not the terms or provisions of the order.
State v. Eubanks, 609 So.2d 107 (Fla. App. 4 Dist. 1992)


ADMISSIBILITY OF DUPLICATES OR EVIDENCE OTHER THAN AN ORIGINAL

s. 338, Generally

Fla D 2d, Evidence, sections 157(5), 174.1


The Florida Evidence Code (F.S. 90.953) allows a duplicate to be admitted in evidence,
McKeehan v. State, 838 So.2d 1257 (Fla. App. 5 Dist. 2003)
Bryant v. State, 810 So.2d 532 (Fla. App. 1 Dist. 2002), (time lapse videotapes)

Van Den Borre v. State, 596 So.2d 687 (Fla. App. 4 Dist. 1992);
Saporito v. Madras, 576 So.2d 1342 (Fla. App. 5 Dist. 1991), (copies of contracts)

Pennsylvania Blue Shield v. Wolfe, 575 So.2d 1361 (Fla. App. 3 Dist. 1991), (photocopy of cancelled check)

State v. Edgecomb, 573 so.2d 1073 (Fla. App. 4 Dist. 1991), (copy of search warrant and “face sheet” of probable cause affidavit)

Fredericks v. Howell, 426 So.2d 1200 (Fla. App. 4 Dist. 1983), (photocopy of carbon copy of letter vendor wrote to broker canceling exclusive listing agreement.)

Lowery v. State, 402 So.2d 1287 (Fla. App. 5 Dist. 1981), (photocopy of photocopy of original check)

As to inadmissibility of duplicate where negotiable instrument, security, or other writing evidencing payment of money is involved; question is raised as to authenticity of the original or any other document or writing; or it is unfair to admit a duplicate in lieu of the original, see sections 339-344.

so long as the duplicate was produced was produced by a method that insured its accuracy and genuineness.
Bryant v. State, 810 So.2d 532 (Fla. App. 1 Dist. 2002)
Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

The purpose of the provision of the Code allowing a duplicate to be admitted in evidence is not to restrict the rules of admissibility of duplicates, but to liberalize them.
Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

And the effect of the provision is to save time and expense previously wasted on producing the original when an equally reliable counterpart is at hand.
 Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

The sufficiency of the foundation necessary for admission of a copy of an original document rests largely in the discretion of the trial court.
Fredericks v. Howell, 426 So.2d 1200 (Fla. App. 4 Dist. 1983)

The court should require a persuasive reason for rejecting a duplicate and should require a specific objection indicating why the original is needed.
Van Den Borre v. State, 596 So.2d 687 (Fla. App. 4 Dist. 1992)


s. 339 Admissibility of evidence other than an original

Fla D 2d, Evidence, sections 157(5), 174.1

The Florida Evidence Code provides for the admission of other evidence of the contents of a writing (that is, evidence other than the original) if one of its four criteria is satisfied:
Garcia v. Lopez, 483 So.2d 470 (Fla. App. 3 Dist. 1986)

(1) the original of a writing is not required, and other evidence of its contents is admissible when all originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith. F.S. 90.954(1).

(2) an original cannot be obtained in Florida by any judicial process or procedure. F.S. 90.954(2).

(3) an original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing. F.S. 90.954(3).

(4) the writing is not related to a controlling issue. F.S. 90.954(4).
A copy of a notice of insurance cancellation was properly admitted into evidence in an action for coverage, where the insured failed to substantiate any claim that the insurer destroyed the original cancellation notice in bad faith.
State Farm Mut. Auto Ins. Co. v. Resnick, 636 So.2d 75 (Fla. App. 3 Dist. 1994), reh’g granted in part, (June 7, 1994)

In a suit to enforce an agreement to make a will, a copy of the alleged agreement was admissible, even if it did not qualify as a duplicate because one of its signatures thereon was original, where the original agreement had been destroyed  through no fault of the proponent of the agreement. Where a party made the required showing that the original of an agreement to make a will was destroyed or lost without bad faith on his part, and the defendants offered no evidence to controvert the party’s account of the loss of the original, the court erred, in concluding that the copy of the agreement was inadmissible.
 Garcia v. Lopez, 483 So.2d 470 (Fla. App. 3 Dist. 1986)

Although former Florida law recognizes degrees of secondary evidence, the present statute, abolishes the distinction made between degrees of secondary evidence.
Fredericks v. Howell, 426 So.2d 1200 (Fla. App. 4 Dist. 1983)
Lowery v. State, 402 So.2d 1287 (Fla. App. 5 Dist. 1981)

In the absence of evidence that an X-ray was intentionally lost or destroyed, and where the party seeking to exclude the opponent’s testimonial evidence as to the contents of the X-ray has the X-ray examined by his own experts who are able to forms and express opinions regarding its contents, the best evidence rule will apply to admit the expert testimony of both parties’ experts.
Hernandez v. Pino, 482 So.2d 450 (Fla. App. 3 Dist. 1986)


s. 340 Negotiable Instrument, Security, or other writing evidencing payment of money

Fla D 2d, Evidence, sections 157(5), 174.1

A duplicate is not admissible if the document or writing is a negotiable instrument, a security, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment. F.S. 90.953(1).

As to definition of “negotiable instrument” in the Uniform Commercial Code – see Fla Jur 2d, Bills, Notes, and Other Commercial Paper.
 
A bank’s failure to produce for admission into evidence the original copy of a negotiable promissory instrument precluded a judgment of foreclosure.
Figueredo v. Bank Espirito Santo, 537 So.2d 1113 (Fla. App. 3 Dist., 1989)

This portion of the statute (F.S. 90.953(1)) was enacted for the introduction of an original negotiable instrument in court in order to prevent its further negotiation.
Pennsylvania Blue Shield v. Wolfe, 575 So.2d 1361 (Fla. App. 3 Dist. 1991)
Lowery v. State, 402 So.2d 1287 (Fla. App. 5 Dist. 1981), (photocopy of photocopy of original check)

Thus the original instrument must be brought forward both to demonstrate the right to payment and to preclude the possibility that the instrument has already been negotiated.
Pennsylvania Blue Shield v. Wolfe, 575 So.2d 1361 (Fla. App. 3 Dist. 1991)

To fall under this provision, the agreement should not only evidence a right to the payment of money, but be of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

The types of documents contemplated by the provision are those instruments that require the delivery of the original document properly endorsed which in itself evidences the right to payment of money.
Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

It does not include every document that includes a right to receive money, among its other provisions.
Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

For example, antenuptial agreements are not normally transferred or assigned and delivery with an endorsement or assignment would be rarely, if ever, experienced in business, certainly not in the ordinary course of  business, so such a document would not be included within the statute.
Tillman v. Smith, 472 So.2d 1353 (Fla. App. 5 Dist. 1985)

The statute does not provide that a duplicate of a negotiable instrument would be inadmissible, it only provides that it would not be admissible to the same extent as the original.
Lowery v. State, 402 So.2d 1287 (Fla. App. 5 Dist. 1981), (photocopy of photocopy of original check)


s. 341. Questions raised as to authenticity

 Fla D 2d, Evidence, sections 74.1, 157(5)

A duplicate is not admissible if a genuine question is raised about the authenticity of the original or any other document or writing. F.S. 90.953(2)

The trial court makes a preliminary determination as to whether a genuine issue of authenticity has been raised.
Van Den Borre v. State, 596 So.2d 687 (Fla. App. 4 Dist. 1992

Where there is a failure to substantiate any claim that there is some genuine question about the authenticity of the original, a copy is properly admitted into evidence.
State Farm Mut. Auto Ins. Co. v. Resnick, 636 So.2d 75 (Fla. App. 3 Dist. 1994), reh’g granted in part, (June 7, 1994), (copy of notice of insurance cancellation in action for coverage.)

s. 342  Unfairness

Fla D 2d, Evidence, sections 74.1, 157(5)

Under the Florida Evidence Code, a duplicate is not admitted where it is unfair, under the circumstances, to admit the duplicate in lieu of the original. F.S. 90.953(3).

s. 344 Functions of court and jury

Fla D 2d, Evidence, sections 87, 157(5)

When the admissibility of other evidence of the contents of writings depends upon the existence of a preliminary fact, the question as to whether the preliminary fact exists is for the court to determine. F.S. 90.958(1)

The trier of fact shall determine whether:

(1) the asserted writing ever existed. F.S. 90.958(2)(a)
(2) another writing produced at the trial is the original. F.S. 90.958(2)(b)
(3) other evidence of the contents correctly reflects the contents. F.S. 90.958(2)(c)

Once the proper foundation has been laid for the introduction of secondary evidence, the resolution of the conflict over the existence of a writing, or whether other evidence correctly reflects the contents is for the jury to determine.
Law Revision Counsel Note to F.S. 90.958.
 
 
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fraudfighter
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« Reply #44 on: June 29, 2006, 05:54:46 PM » Quote

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A court of equity is a court of conscience; it should not be shackled by rigid rules of procedure and thereby preclude justice being administered according to good conscience.
Equity delights to do justice and not be halves.
Once a court of equity acquires jurisdiction over a dispute, it is authorized to administer full, complete, and final relief.
Demorizi v. Demorizi, 851 So.2d 243.

Parties must come to courts of equity with clean hands as equity does not condone concealment of affirmative misconduct,
Secretary of Veterans Affairs v. Tejedo, 774 So.2d 709, 25 Fla. L. Weekly D58 (Fla. App. 3 Dist. 1999)

A party must prove that he was injured for the unclean hands doctrine to apply.
The fact that a party’s conduct is disreputable is entirely irrelevant where the party asserting unclean hands is not the target of, and has taken no action in reliance on that conduct, however disdainful of that conduct a court may be.
The conduct constituting the unclean hands must generally be connected with the matter in litigation and must affect the adverse party.
McCollem v. Chidnese, 832 So.2d 194

Doctrine of unclean hands was not an appropriate vehicle to resolve disputed issues of fact.
Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989


Cross v. Aby is the lack of competency defense:

The admission of parol evidence to prove the contents of a written instrument is limited to situations where a witness saw the writing and can testify clearly to its content.
Am. Jur 2d, Lost and Destroyed Instruments, s. 24
Where neither the language nor any part of the contents of a lost paper is attested to by a witness, the witness’ opinion as to the lost paper’s meaning and effect is incompetent to prove its contents. Fla. Jur 2d, Lost and Destroyed Instruments, s. 9
“The proof of the contents of a lost paper ought to be clear and satisfactory, and where neither the language nor any part of the contents of such lost papers is given by the witness, his opinion as to the meaning and effect thereof is incompetent to prove its contents.”
Cross v. Aby, 45 So. 820 (Fla. 1908)


“If a party relying on a writing can prove that a writing existed and has been lost or destroyed, he is relieved of the burden of producing the original and can present secondary evidence of its contents.”
“Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by the defendant arising out of letter …. Plaintiff’s action to recover for breach of contract … was governed by Florida’s … limitations period governing actions on oral contracts, rather than the five year period governing actions on written contracts.”
Klein v. Frank, 534 F.2d 1104 (C.A, 5 1976)


“Absense of lost destroyed document does not necessarily preclude proof of its contents, but such proof must be clear, strong and unequivocal.”
“Where contents of claimed lost document are relied upon to avoid statute of frauds, each step in proof to avoid statute must be carefully examined.”
Weinsier v. Soffer, 358 So.2d 61, certiorari denied 365 So.2d 714.

“Question of sufficiency of proof of loss of note sued upon in action by owner of lost instrument rests largely within discretion of the trial court.” F.S.A. 673.804 (now 673.3091)
Barber v. Ehrich, 394 So.2d 220 (Fla. App. 5 Dist. 1981)

“Where action for reestablishment and enforcement of lost document proceed simultaneously, trier of fact should decide reestablishment issue before enforcement or breach issues.” F.S.A. 71.011(4)
Carlsen & Co., Inc v. Feldman, 677 So.2d 970 (Fla. App. 3 Dist. 1996)


The intentional destruction of a written instrument by an owner or the owner’s agent may result in discharging the obligation evidenced by it, and where the instrument itself is the obligation and the debt, re-establishing the lost instrument by judicial declaration may be inappropriate. Henson v. Henson, 151 Tenn. 137, 268 S.W. 378, 37 ALR 1131 (1925)
Karafa v. New Jersey State Lottery Commission, 129 N.J. Super. 499, 324 A.2d 97 (Ch. Div. 1974)(distinguished by, Triano v. Division of State Lottery, 306 N.J. Super. 114, 703 A.2d 333 (App. Div. 1997))(winning lottery ticket, which is required to be presented for payment of the prize).


Carlsen & Co. v. Feldman, 677 So.2d 970 (Fla. App. 3 Dist. 1996)
“Statute providing for reestablishment of lost contracts did not require that judgment be entered and recorded for reestablishment of lost document as condition precedent to action for enforcement or breach of lost document; parties could seek reestablishment and enforcement of lost documents in same lawsuit.” F.S.A. 71.011(4)

Klein v. Frank, 534 F.2d 1104 (C.A. 5, 1976)
”If the party relying on a writing can prove that a writing existed and has been lost or destroyed, he is relieved of the burden of producing the original and can present secondary evidence of its contents.” Federal Rules of Evidence, rule 1004, 28 U.S.C.A.


Nahmod v. Nelson, 3 So.2d 162 (Fla. 1941)
“Secondary evidence is admissible to prove contents of a lost writing where proper predicate is laid and where such evidence is otherwise competent and admissible.”


Staiger v. Greb, 97 So.2d 494 (Fla. App. 3 Dist. 1957)
“Courts of inferior jurisdiction do not have jurisdiction to entertain suits to re-establish lost negotiable instruments and courts of law do not have an inherent power to re-establish such papers not already a part of their records.”

State ex. rel. Broward v. Edmunds, 153 So. 850 (Fla. 1934)
“Equity courts may re-establish lost papers other than their own records, where moving party shows right to relief sought in equity.”
“County judge is unauthorized to re-establish alleged lost or destroyed will that has never been made record in his office.”
 
 
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   Re: Questions MSJ
« Reply #46 on: June 29, 2006, 06:05:38 PM » Quote

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« Reply #4 on: September 11, 2006, 02:04:12 PM »

An open account is defined as, variously, an "unsettled debt arising from items of work and labor, . . . with the expectation of further transactions subject to future settlement and adjustment." [e.s.] Robert W. Gottfried, Inc. v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); see also H&H Design Builders, Inc. v. Travelers' Indemnity Co., 639 So. 2d 697 (Fla. 5th DCA 1994).
 
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« Reply #50 on: June 29, 2006, 06:17:11 PM » Quote

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This case recognized the lack of tolling provision for an F.S. 95.11(3)(k) action (not founded on a written instrument):
 
Hospital Constructors Ltd. Ex rel. Lifemark Hospitals of Florida, Inc. v. Lefor, 749 So. 2d 546  Fla. 2nd DCA 2000
 
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   Re: Questions MSJ
« Reply #51 on: June 29, 2006, 06:18:35 PM » Quote

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WOW! AWSOME STUFF!  
 
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2006 FL Rules of Civil Procedure
Florida Northern Local rules of Civil Procedure
Searchable Florida statutes
 
 
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« Reply #52 on: June 29, 2006, 06:19:29 PM » Quote

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In Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), the Florida Supreme Court held that the party moving for a summary judgment has the burden of conclusively showing the nonexistence  [*5]  of a genuine issue of material fact, and the proof must overcome all reasonable inferences which may be drawn in favor of the non-moving party. See also Brooks v. Herndon Ambulance Service, Inc., 475 So. 2d 1319 (Fla. 5th DCA 1985).
 
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« Reply #53 on: June 29, 2006, 06:20:32 PM » Quote

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In Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057 (Fla. 3d DCA 1979), we stated that to be an enforceable real estate contract, the statute of frauds requires that the contract be embodied in a written memorandum signed by the party against whom enforcement is sought and that the written memorandum disclose all of the essential terms of the sale, and these terms may not be explained by resort to parol evidence.

Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057 (Fla. 3d DCA 1979),
Id. at 1059. We then refused to enforce an unsigned RAMCO form, stating that "in order for an unsigned writing to be used to supply the essential elements of an enforceable contract, there must be some reference to that unsigned writing in the signed writing."
 
 
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« Reply #54 on: June 29, 2006, 06:21:42 PM » Quote

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Florida Rule of Civil Procedure 1.130(a) provides that all contracts or documents "upon which action may be brought . . . shall be incorporated in or attached to the pleading." When a party brings an action based upon a contract and fails to  attach a necessary exhibit under Rule 1.130(a), the opposing party may attack the failure to attach a necessary exhibit through a motion to dismiss. See Safeco Ins. Co. v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th DCA 1981). Where a complaint is based on a written instrument, the complaint "does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in" the complaint. Id.

 
 
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« Reply #55 on: June 29, 2006, 06:22:39 PM » Quote

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On review of a motion to dismiss for failure to state a cause of action, we are "'required to treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to plaintiffs.'". Dee v. Sea Ray Boats, Inc., 702 So. 2d 1349, 1349 (Fla. 3d DCA 1997) (quoting Hollywood Lakes Section Civic Ass'n, Inc. v. City of Hollywood, 676 So. 2d 500, 501 (Fla. 4th DCA 1996)).
 
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« Reply #56 on: June 29, 2006, 06:23:35 PM » Quote

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As pointed out by the buyers, Rule 1.510(c), Florida Rules of Civil Procedure, requires the movant to "state with particularity the grounds upon which [the motion] is based and the substantial matters of law to be argued."
This rule is designed to prevent "ambush" by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing. The City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283 (Fla. 4th DCA 1995).

Accordingly, the trial court erred to the extent that, in entering judgment  [*9]  for the sellers, it relied on the arguments made at the hearing but not in the motion. See Gulf Insurance Co. v. Stofman, 664 So. 2d 1083 (Fla. 4th DCA 1995).


(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing. The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant's attorney no later than 5:00 p.m. two business days prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
 
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« Reply #57 on: June 29, 2006, 06:27:03 PM » Quote

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We first turn to the elements of an unjust enrichment claim in the State of Florida. A claim for unjust enrichment is an equitable claim, based on a legal fiction created by courts to imply a "contract" as a mater of law. Although the parties may have never by word or deed indicated in any way that there was any agreement between them, the law will, in essence, "create" an agreement in situations where it is deemed unjust for one party to have received a benefit without having to pay compensation for it. It derives, not from a "real" contract but a "quasi-contract." See Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co. , 695 So.2d 383, 386 (Fla. Dist. Ct. App. 1997) (en banc). To succeed in a suit for unjust enrichment a plaintiff must prove that:
(1) the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant has voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.
See Greenfield v. Manor Care, Inc. , 705 So. 2d 926, 930-31 (Fla. Dist. Ct. App. 1997), rev. denied , 717 So. 2d 534 (Fla. 1998).


We see these considerations as equally relevant under Florida law in assessing whether "the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Greenfield , 705 So.2d at 931. In this case, we are satisfied that the trial judge correctly assessed the evidence and determined that the circumstances did not create such inequity. The trial judge found that "the evidence in this case unquestionably shows that the sole reason Tooltrend engaged in advertising and promotional activities was to make a profit for itself. In this situation, it is not unjust, as a matter of law, if the defendants do not compensate Tooltrend for any enhancement that may have accrued to Utensili's two trademarks while Tooltrend was advertising and promoting the products it was selling . . . . " (Dist. Ct. Op. at 15).

U.S. 11th Circuit Court of Appeals
99
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
                FOR THE ELEVENTH CIRCUIT
                ________________________
                      No. 98-3183
                ________________________
            D.C. Docket No. 96-9-CivT-26(B)
TOOLTREND, INC., a Florida
Corporation, d.b.a. CMT Tools,
Plaintiff-Counter-defendant-Appellant,
versus
CMT UTENSILI, SRL, an
Italian Company, CMT USA,
INC., a North Carolina corporation,
Defendants-Counter-claimants-Appellees.
               __________________________
  Appeal from the United States District Court for the
               Middle District of Florida
               _________________________
                  (December 17, 1999)

Before CARNES and BARKETT, Circuit Judges, and PAINE*, Senior District Judge.
_______________________________________________________________
* Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
BARKETT, Circuit Judge:
Tooltrend, Inc. ("Tooltrend") appeals from the district court's order vacating a jury verdict in its favor for $1,741,993 against its former business associates CMT Utensili and CMT USA (collectively "Utensili"). The jury award was based on Tooltrend's claim of unjust enrichment in a dispute between the parties involving the ownership of three separate trademarks. The district court vacated the award of damages and entered judgment in favor of Utensili, and, alternatively, granted Utensili's motion for a new trial. On appeal, Tooltrend argues that the district court misconstrued the Florida law of unjust enrichment, and therefore erred in vacating the jury's verdict. In the alternative, Tooltrend argues that rather than vacating the verdict or granting a new trial, the district court should have remitted the jury's verdict to $636,011.

                       Background


Tooltrend is a Florida-based company which has sold cutting tools for the woodworking industry since 1991. Utensili is an Italian company which has manufactured woodworking tools from its facility in Pesaro, Italy, since 1964. Sometime in 1991, Tooltrend and Utensili agreed that Tooltrend would become the United States distributer of the router bits manufactured by Utensili. With the agreement of Utensili, Tooltrend sold these Utensili router bits in the United States under the name "CMT Tools." Thus, "CMT" was featured in all of Tooltrend's advertisements and catalogues and Tooltrend used a distinctive orange fruit logo to call attention to the router bits which were orange in color.
In October 1995, the relationship between Tooltrend and Utensili ended. Tooltrend claimed that Utensili was not adequately supplying Tooltrend with products and was imposing unwarranted price increases. Utensili claimed that Tooltrend was not paying in a timely manner. After the relationship between the parties terminated, Utensili's owners set up its own separate company, CMT USA, to distribute its products directly in this country. Thus, as of December 1995, Tooltrend and Utensili were both selling identical products under business names which both included "CMT."
In January 1996, Tooltrend filed this lawsuit alleging, among other things, Lanham Act violations regarding the orange color on the router bits, the name "CMT Tools," and the orange fruit logo. Tooltrend also sought an injunction to keep Utensili from selling woodworking tools under these marks. Utensili filed a counterclaim asserting ownership to the "CMT," "orange color on router bits," and the orange fruit logo trademarks. In an amended complaint, Tooltrend added causes of action for copyright infringement and unjust enrichment, asserting that if Utensili were declared the owner of the "CMT" and the "orange color on router bits" marks, Utensili would have been unjustly enriched by Tooltrend's advertising and promotional efforts regarding the router bits. Tooltrend claimed unjust enrichment damages of $636,011.
Ultimately, Utensili, which had registered the CMT name in Italy in 1972, was deemed to be the owner of the CMT mark and of the orange-color-on-router-bits trademark,   1   and Tooltrend was deemed to be the owner of the orange fruit logo. The jury then determined that Utensili had not suffered any damages, but that Tooltrend was entitled to $1,741,993 on its unjust enrichment claim.   2  
After the jury verdict, the trial judge granted Utensili's motion for judgment as a matter of law, dismissing Tooltrend's unjust enrichment claim, and, alternatively, granting Utensili's motion for a new trial, thus setting aside the damage award. Tooltrend now appeals. We review de novo a trial court's order granting judgment as a matter of law. See Ortega v. Schramm , 922 F.2d 684, 694 (11th Cir. 1991).
To grant judgment as a matter of law, the court must determine that there is such overwhelming evidence in favor of the movant that a reasonable and fair-minded juror could not arrive at a contrary verdict. See Carter v. City of Miami , 870 F.2d 578, 581 (11th Cir. 1989) (citing Miles v. Tennessee River Pulp & Paper Co. , 862 F.2d 1525 (11th Cir. 1989)). Federal Rule of Civil Procedure 50, under which this motion was submitted, "allows the court to take away from the jury's consideration cases or issues when the facts are sufficiently clear that the law requires a particular result." 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil2d § 2521 (1994). "A motion for a directed verdict, or for a judgment notwithstanding the verdict under Rule of Civil Procedure 50, 28 U.S.C.A., raises a question of law only: Whether there is any evidence which, if believed, would authorize a verdict against movant. The trial judge in considering those motions does not exercise discretion, but makes a ruling of law . . . ." Marsh v. Illinois Cent. R. Co. , 175 F.2d 498, 500 (5th Cir. 1949).   3  

                       
Discussion


The district court found that Tooltrend was not entitled to recover on a theory of unjust enrichment because Tooltrend's activities promoting Utensili's trademarks "were conducted to promote . . . [Tooltrend's] own business and without any expectation of compensation." (Dist. Ct. Op. at 1). On appeal, Tooltrend argues that the district court erred by confusing the separate legal doctrines of quantum meruit and unjust enrichment. Tooltrend argues that, because its claim is based on a contract implied in law, it is entitled to recover regardless of its expectation of compensation, and that the district court therefore misconstrued the law.
We first turn to the elements of an unjust enrichment claim in the State of Florida. A claim for unjust enrichment is an equitable claim, based on a legal fiction created by courts to imply a "contract" as a mater of law. Although the parties may have never by word or deed indicated in any way that there was any agreement between them, the law will, in essence, "create" an agreement in situations where it is deemed unjust for one party to have received a benefit without having to pay compensation for it. It derives, not from a "real" contract but a "quasi-contract." See Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co. , 695 So.2d 383, 386 (Fla. Dist. Ct. App. 1997) (en banc). To succeed in a suit for unjust enrichment a plaintiff must prove that:
(1) the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant has voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.
See Greenfield v. Manor Care, Inc. , 705 So. 2d 926, 930-31 (Fla. Dist. Ct. App. 1997), rev. denied , 717 So. 2d 534 (Fla. 1998).
By contrast, the remedy of quantum meruit derives from contracts "implied in fact." In these contracts, the parties have in fact entered into an agreement but without "sufficient clarity, so a fact finder must examine and interpret the parties' conduct to give definition to their unspoken agreement . . . . [in order to give] the effect which the parties . . . presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly thereto." Commerce , 695 So.2d at 385-86 (internal quotation marks omitted).   4  
In this case, Tooltrend disavows a claim of quantum meruit, or contract implied in fact. Tooltrend specifically concedes that its claim does not derive from any words or actions of the parties. Hence, the question before us is whether we should imply or "create" a contract in law on the basis that it would be unjust for Utensili to have received the benefit of advertising and promotion without paying compensation to Tooltrend. As recognized by the trial court, "[t]he essence of the [unjust enrichment] claim seems to be that Tooltrend spent money and effort promoting the trademarks of `CMT' and the orange color on router bits, and that[, as] owner of those trademarks, Utensili has been unjustly enriched by the enhanced value of those properties . . . ." (Dist. Ct. Op. at 7).
In deciding that Tooltrend was not entitled to relief, the trial court appeared to rule that the elements of an unjust enrichment claim must include the plaintiff's expectation of compensation, and in its brief, Utensili emphasizes this position. Tooltrend argues that appending another element to Florida's law of unjust enrichment is legally improper. Implicit in Utensili's argument that an expectation of compensation is a necessary component of every unjust enrichment claim is that such an expectation must be found from the conduct or the words of the parties. However, Florida courts have made clear that an unjust enrichment claim may be brought whether or not the parties had any previous contact at all. See Commerce , 659 So.2d at 386 ("Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other."). Even recognizing that an expectation of compensation can exist without a clear notion of who should pay it, requiring proof of such an expectation in every case would unduly restrict the expressed concept in Florida law which provides a mechanism for imposing liability in all types of cases where "the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiffs."
Nonetheless, although a claim for quantum meruit requires that plaintiffs demonstrate an expectation of compensation before they seek compensation, and a claim of unjust enrichment does not, that expectation might very well be relevant to the question of whether it would be unjust to retain a benefit without having to pay for it. Notwithstanding that claims for quantum meruit and unjust enrichment arise under distinct causes of action, they may at times share elements of proof such as an expectation of compensation.   5   In essence, this appears to be the import of the trial judge's ruling. ( See Dist. Ct. Ord. at 13).
The trial judge viewed Tooltrend's advertising efforts as services provided to Utensili and adopted the rationale of Bloomgarden :
By their very nature, the equitable principles of quasi- contracts are more difficult to apply where the court must determine whether services rendered by one person to another are to go unrewarded than where it must make that determination with respect to money or property unjustly retained. But since there is no general responsibility in quasi-contract law to pay for services irrespective of the circumstances in which they are carried out, a number of factual criteria have been utilized by courts to ascertain whether in a given case the defendant has undeservedly profited by the plaintiff's efforts. Thus, in situations involving personal services, it has been variously stated that a duty to pay will not be recognized where it is clear that the benefit was conferred gratuitously or officiously, or that the question of payment was left to the unfettered discretion of the recipient. Nor is compensation mandated where the services were rendered simply in order to gain a business advantage. And the courts have reached the same conclusion where the plaintiff did not contemplate a personal fee, or the defendant could not reasonably have supposed that he did . . . . No unfairness results from a denial of compensation to the claimant who had no expectation of personal remuneration at the time of performance. On the contrary, it would be unjust to impose a liability for payment on the party who accepts the services without any warning, from the surrounding circumstances or otherwise, that they were rendered for a price.
479 F.2d at 211-12 & n.66 (footnotes omitted) (emphasis in original); see also Lirtzman v. Fuqua Indus., Inc. , 677 F.2d 548, 553 (7th Cir. 1982); E. Allan Farnsworth, Contracts §2.20, at 106 (2d ed. 1990) ("recovery in restitution will be denied if [a benefit] was conferred `gratuitously,' that is, without expectation of compensation").
We see these considerations as equally relevant under Florida law in assessing whether "the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Greenfield , 705 So.2d at 931. In this case, we are satisfied that the trial judge correctly assessed the evidence and determined that the circumstances did not create such inequity. The trial judge found that "the evidence in this case unquestionably shows that the sole reason Tooltrend engaged in advertising and promotional activities was to make a profit for itself. In this situation, it is not unjust, as a matter of law, if the defendants do not compensate Tooltrend for any enhancement that may have accrued to Utensili's two trademarks while Tooltrend was advertising and promoting the products it was selling . . . . " (Dist. Ct. Op. at 15). Tooltrend had already purchased the router bits from Utensili and was free to resell the router bits at a profit. It cannot be gainsaid that Tooltrend's promotional efforts were directed toward extending its own profit margin. Certainly, Tooltrend has reaped and continues to enjoy its own tangible and intangible benefits from the promotional work it has done. Although Tooltrend may have conferred the benefit of product recognition on Utensili, any incidental enrichment enjoyed by Utensili under the circumstances presented here is far from unjust. Although we do not hold that an expectation of compensation, per se, must be included as an element of every claim for unjust enrichment, we nevertheless conclude that, under these facts, the trial court did not err. Because "[t]he most significant requirement for a recovery on quasi contract is that the enrichment to the defendant be unjust," Commerce , 695 So.2d at 388 (quoting Maloney v. Therm Alum Indus. Corp. , 636 So.2d 767, 770 (Fla. Dist. Ct. App.), rev. denied , 645 So.2d 456 (Fla. 1994)), and because we find no such injustice here, the district court was correct in entering a judgment as a matter of law in favor of Utensili.
AFFIRMED.
FOOTNOTES
--------------
  [1]  
Utensili had used an orange color since 1972 on its logo, invoices, communications, products and packaging, and has used an orange color on its products since the beginning of the 1980s.
--------------
  [2]  
Tooltrend's evidence on damages was that from 1991 to 1996, Tooltrend paid approximately $589,000 for advertising, $1,150,000 for catalogue promotion, approximately $50,000 on free samples, and $77,000 for advertising at trade shows.
--------------
  [3]  
In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
--------------
  [4]  
As Judge Gross writing for the en banc court recognized, confusion in this area arises because some courts have used some of these terms inappropriately and have on occasion improperly connected remedial terms to the wrong theory. For example, using quantum meruit improperly in connection with a contract implied in law as opposed to a contract implied in fact where it belongs, or conversely, using the term "unjust enrichment" in connection with a cause of action for a contract implied in fact from the conduct of the parties. See Commerce , 695 So.2d at 385-86; see also 66 Am. Jur.2d Restitution and Implied Contracts § 166 (1999) (noting that "[q]uantum merit . . . is an ambiguous term," at times used to refer to contracts implied in fact and at others to refer to unjust enrichment).
--------------
  [5]  
Indeed, both causes of action can be pled alternatively. However, the expectation of compensation would be treated differently in each cause of action. In a claim for quantum meruit pursuant to a contract implied in fact, the expectation of compensation would be measured by the intent of the parties as expressed by their actions. In a claim for unjust enrichment, it would be one of the considerations in assessing the "unjustness" of the enrichment and measured in terms of the benefit to the owner, not the cost to the provider. See Levine v. Fieni McFarlane, Inc. , 690 So.2d 712, 713-14 (Fla. Dist. Ct. App. 1997); see also Miceli v. Gilmac Developers, Inc. , 467 So.2d 404, 406 (Fla. Dist. Ct. App. 1985); 17A Am. Jur.2d Contracts § 746 (1999) (noting that a plaintiff "may sue on a quasi contract to recover any money paid by him or on a quantum meruit to recover for what he has . . . furnished"). In this case, Tooltrend's only claim is for unjust enrichment
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rubyruby27
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« Reply #5 on: September 11, 2006, 02:10:14 PM »

Tower recently posted this in the account stated thread by Butch:


Car Center, Inc v. Home Indemnity Company, Inc. Nos. 86-670, 86-765 Supreme Court of Alabama 519 So. 2d 1319; 1988 Ala. LEXIS 28
January 22, 1988, Filed

In University of South Alabama v. Bracy, 466 So.2d 148, 150 (Ala.Civ.App. 1985), the Court of Civil Appeals summarized the nature of an account stated:

"An account stated is a post-transaction [**9] agreement. It is not founded on the original liability, but is a new agreement between parties to an original account that the statement of the account with the balance struck is correct and that the debtor will pay that amount. Martin v. Stoltenborg, 273 Ala. 456, 142 So.2d 257 (1962). It is as if a promissory note had [*1323] been given for the balance due. Ingalls v. Ingalls Iron Works Co., 258 F.2d 750 (5th Cir. 1958).

"A prima facie case on an account stated is made when the plaintiff proves (1) a statement of the account between the parties is balanced and rendered to the debtor; (2) there is a meeting of the minds as to the correctness of the statement; and (3) the debtor admits liability. Ingalls v. Ingalls Iron Works Co., supra; Barber v. Martin, 240 Ala. 656, 200 So. 787 (1941). The debtor's admission to the correctness of the statement and to his liability thereon can be express or implied. An account rendered, and not objected to within reasonable time becomes an account stated, and failure to object will be regarded as an admission of correctness of the account. Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 [**10] So.2d 678 (1963); Joseph v. Southwark, 99 Ala. 47, 10 So. 327 (1891). Once the plaintiff proves his prima facie case, the burden of proof shifts to the defendant. Barber v. Martin, supra." (Emphasis added.)

One of the elements of a prima facie case, a rendering of the statement of account, requires a factual showing that there was a proper mailing or evidence supporting a finding of mailing in due course. "The presumption of the law is that a letter, properly addressed with sufficient postage, and unreturned to the sender whose address is shown on the envelope, was received by the addressee." Currie v. Great Central Ins. Co., 374 So.2d 1330 (Ala. 1979), citing Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co., 287 Ala. 259, 251 So.2d 220 (1971).

The statement of account contains an incorrect zip code; therefore, it reflects an incorrect address on its face. By contrast, the address on the complaint contains the correct zip code.

There is no other competent testimony concerning the proper mailing or mailing in due course of this statement of account. The affidavits upon which Home relied contained no competent testimony concerning the actual [**11] mailing of the statement. The affidavit of Marianne Bernier merely recites that "[a] statement for this amount was sent to [Roebuck]." There were no facts describing mailing procedures or knowledge of mailing procedures contained in this affidavit. Therefore, Home has failed to prove a proper mailing or mailing in due course of the statement of account, and, thus has failed to establish that the statement of account was "rendered to the debtor." Bracy, supra.

An account stated also requires an express or implied agreement to pay the bill (statement of account). An implied agreement to pay a bill can arise only where there has been a showing that the bill was rendered and the recipient of the bill failed to object within a reasonable time. Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 So.2d 678 (1963). Because Home has failed to sustain its burden of demonstrating that the bill was rendered, it cannot maintain that there was an implied agreement to pay the bill.

It appears that Home attempted to prove the statement of account by utilizing Code of 1975, § 12-21-111, which states:

"In all actions upon accounts, an itemized statement of the account, verified by the affidavit of a competent witness, taken before and certified by, a notary public or any officer having authority under the laws of this or another state to take and certify affidavits, is competent evidence of the correctness of the account if the plaintiff, at the time of bringing his action, files with his complaint such verified itemized statement and endorses on the complaint [**14] the fact that the account is verified by affidavit. Unless the defendant, within the time allowed him for pleading, files in the case an affidavit denying on information and belief the correctness of the account, which affidavit of the defendant shall state whether or not the defendant denies liability and whether or not he disputes the whole account or only a part or parts or an item or items thereof (if defendant disputes only a part or parts or an item or items of the account and not the whole account, he shall state in such affidavit what parts or items are disputed by him), the verified account so filed and noted by the plaintiff shall be competent evidence of the correctness of all parts and items of the account not disputed by defendant's affidavit. Any person who files a denial of the correctness of the verified account and thereby causes delay or a continuance of the case, when, on final hearing of the case, the judge of the court does not believe that the denial affidavit was made in good faith, shall be penalized in a sum not exceeding five percent of the amount of the judgment recovered, which sum shall be added to and become a part of the judgment. The presence on the [**15] affidavit of the seal of the officer purporting to take such affidavit shall be prima facie evidence of the fact that it was affixed thereto by such officer."

At the outset, we note that Home clearly did not meet the requirements of this statute, which, if it were complied with, would insure that the statement of account was competent evidence of the debt of an open account. Specifically, Home failed to endorse on the complaint the fact that the account was verified by affidavit. It is also noted that Roebuck did not object to the verified account by filing an affidavit with its answer denying liability for all or part of the debt in accordance with the statute. Secondly, even if Home had properly complied with the statute, the statement of account contains an incorrect address for Roebuck. More importantly, the statement of account does not identify when the last item of the account occurred[/color]



Walter's case is account stated based on the last billing statement from the OC which she failed to disute (not that PDI filed a counter-claim against her FDCPA claim in federal court and she failed to motion to dismiss using an argument of no compulsory counter-claim).

The Alabama case, as are many cases, was based on an affidavit of debt and failed because it wasn't properly itemized. Alabama and Michigan are two states that have statutes defining accounts stated and that a denial must be rendered in a written affidavit within a certain amount of time.

A lot of these hassles with accounts stated can be avoided if people would follow through. Sending a timely DV and disputing are only two steps of a three step process. The third step, a lawsuit, is the follow through and provides resolution and closure on the issue. It's much easier and quicker than allowing the TL to sit and fester like an open sore on your credit report for 8 or 9 months then getting a packet of the OC's original billing statements in the mail from the CA/JDB.
END QUOTE

I followed the above case's mention of a debtor disputing the account stated by using a notarized denial of the affidavit of claim used by the collection agency.
I sent the CA my affidavit (CMRRR) to them intitled Affidavit of Claim-Denial. "I, foolsmission the undersigned, being duly sworn, hereby state and attest: I disputed the amount character, amount, and legal status of the alleged obligation described in a presentment entitled "Affidavit of Claim" in its entirety.

I also stated that I'd previously disputed the affidavit of claim sent in late august, in a declairation to the court in early November.

 
 
 
 
Connolly v. Sebeco  Fla 1956 89 So2d 482

On a motion for summary judgment, if the party moved against has admitted facts which preclude him from ever obtaining a judgment, or is without evidence to support a fact which he must establish to succeed, or, is without evidence to rebut fact established by his opponent’s evidence, which, if true, precludes a judgment in his favor, a summary judgment is proper.

On a motion for summary judgment the Court should not be asked to substitute itself for a jury and try controverted issues of fact.
For the purpose of such a motion it should be assumed that every fact as to which the party moved against has any appreciable evidence may at a trial be established to the satisfaction of a jury.
But if the party moved against has admitted facts which preclude him ever obtaining a judgment, or is without evidence to support a fact which he must establish to succeed, or, in the face of substantial evidence by his opponent, is without evidence to rebut a fact established by his opponent’s evidence which, if true, precludes a judgment in his favor, then there is no necessity for a trial and a summary judgment is proper.


1) If the party moved against has admitted facts which preclude him ever obtaining a judgment.

2) Or without evidence to support a fact which he must establish to succeed

3) Or, in the face of substantial evidence by his opponent, is without evidence to rebut a fact established by his opponent’s evidence

4) opponent’s evidence which, if true, precludes a judgment in his favor
 
 
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fraudfighter
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   Re: Questions MSJ
« Reply #61 on: June 29, 2006, 06:45:41 PM » Quote

--------------------------------------------------------------------------------


A timely motion to dismiss under rule 1.140(b) tolls the time to serve a responsive pleading. See Coral 97 Associates, Ltd. v. Chino Elect., Inc., 501 So.2d 69 (Fla. 3rd DCA 1987);

121205 Exemptions  

Cases

Purpose of statute providing that no process shall issue when it is sought to attach money or other thing due for personal labor or services of a head of the family is to relieve the family of wage earners from expense and hardship which would result when payment of earnings due breadwinner of the family are either delayed or impounded by judicial process. F.S.A. 77.03
Noland Co. v. Linning, 132 So.2d 802 (Fla. 1st DCA 1961)

Statute providing that when levy is made by writ of execution the debtor shall make inventory of the whole of his personalty as exempt from sale merely provides method for implementing organic constitutional right of head of household to exemption of $1,000 worth of personalty from forced sale under process of any court and does not abridge the constitutional provision. F.S.A. 222.06, F.S.A. Const. Art 10, s.1.
Azar v. Graham, 194 So.2d 684 (Fla. 3rd DCA 1967), certiorari discharged 204 So.2d 193.

Under Florida law, in order to qualify as a head of a family for purposes of bankruptcy exemptions, there must be at least two persons living together in relation of one family and one of them must be the head of family. F.S.A> Const. art 10, s.4.
For purposes of determining whether a debtor or a head of family under Florida law and thus entitled to a bankruptcy exemption, there must be a legal or moral obligation to discharge the duties of head of family and support by itself is not determinative.
Under Florida law, an able-bodied husband cannot abdicate his presumptive position as head of the family, for bankruptcy exemption purposes, and as long as the family relationship remains intact, the husband is deemed to be head of family unless he is unable to discharge his duties due to permanent illness, incarceration or mental incompetence.
Under Florida law, a married woman who supports a dependent of other persons is not head of a family, for bankruptcy purposes, so long as the relationship of husband and wife remains intact.
Under Florida law, a married woman may be head of a family under certain conditions during the existence of a marriage; however, there is a presumption that the husband is the head of a family, for bankruptcy exemption purposes.
Under Florida law, even though debtor earned more that her husband, she did not qualify to be head of a family unit consisting of herself and her husband and, therefore, her exemption claim could not be recognized.
Matter of Barnes, 4 B.R. 600 (Bkrtcy. M.D. Fla. 1980)


Under Florida law, determination of whether legal status as head of a household exists depends upon whether the person asserting that status has a legal or moral duty to support, care for, and train members of the family group. F.S.A. 222.01 et seq.; F.S.A. Const. Art 10, s.4.
In re Gurtler, 30 B.R. 233 (Bkrtcy. S.D. Fla. 1983)

There cannot be more than one head of a family for exemption purposes, when family is living together in one household and, although married woman may be head of household for exemption purposes, when man and woman are legally married and marital relationship is intact, there is presumption that husband is head of household. F.S.A. 222.20; F.S.A. Const. Art. 10, s.4.
In re Schachne, 6 B.R. 236 (Bkrtcy. S.D. Fla. 1980)


Debtor was not entitled to claim exemption on basis that he was head of family by providing principal means of support for his mother, with whom he lived, in light of fact that debtor paid his mother approximately $500 per month, out of that sum she paid car payment of approximately $220 on 1981 automobile, which debtor used exclusively, and from remaining amount, debtor’s mother paid additional expenses for debtor’s benefit.  F.S.A. Const. Art. 10., s.4.
In re Bennett, 15 B.R. 136 (Bkrtcy. S.D. Fla. 1981)


The wage exemption provided by Florida statute was designed to protect wages of residents and citizens of Florida and not wages earned by one who at the time relevant was not a resident and citizen of Florida and whose wages were not paid by a Florida employer. F.S.A. 222.11
Matter of Szuets, 22 B.R. 805 (Bkrtcy. M.D. Fla. 1982)

Florida only recognizes state law exemptions and nonbankruptcy federal law exemptions. F.S.A. 222.20.
In re Himmelstein, 203 B.R. 1009 (Bkrtcy. M.D. Fla. 1996)

Under Florida wildcard exemption for ”personal property to the value of one thousand dollars,” it is the individual claming exemption who is entitled to determine what items of personal property to exempt. F.S.A. Const. Art. 10,  s.4.
Chapter 7 debtor whose equity in motor vehicle exceeded, by just about $600, the $1,000 motor vehicle exemption accorded to debtors under Florida statute could utilize constitutional wildcard exemption for “personal property to the value of one thousand dollars,” in order to exempt his remaining equity in vehicle; statutory and constitutional exemptions were not mutually exclusive, but could be combined by debtor in order to claim more than a $1,000 exemption in his shortbed truck.
Under Florida wildcard exemption for “personal property to the value of on thousand dollars,” any type of personal property may be exempted, provided that the value does not exceed $1,000.
In re Rutter, 247 B.R. 334 (Bkrtcy. M.D. Fla. 2000)

 
For purpose of provision in Florida Constitution exempting personal property to value of $1,000 from forced sale or judgment lien, “personal property” can include cash.” F.S.A. Const. Art 10, s.4.
Schlosser v. State, 602 So.2d 628 (Fla. 2nd DCA 1992)


Under Florida wage exemption statute, earnings from business controlled by debtor are not exempt.
Under Florida wage exemption statute, debtor must show that compensation qualifies as earnings from personal services. F.S.A. 222.11.
In re Zamora, 187 B.R. 783 (Bkrtcy. S.D. Fla. 1995)

Since purpose of exemption statutes is to protect not only husband but also his family from destitution, such statutes will not, unless contrary intention is clearly shown, be construed to enable husband to claim its benefit against very persons to whom he owes obligation of support and maintenance.
Anderson v. Anderson, 44 So.2d 652 (Fla. 1950)

Protection and enforcement of rights
s.105 Establishment of right of exemption in general.
Procedure established by garnishment statute for asserting head of household exemption is entitled to great deference from the courts.
F.S.A. 222.12.
Cadle Co. v. G & G Associates, 737 So.2d 1136, rehearing denied, appeal after remand 741 So.2d 1257.

s.110 Garnishment
Statute providing that no process shall issue when it is sought to attach money due for personal labor or services of head of the family residing in the state, imposed a mandatory duty on a court to refrain from issuing a writ of garnishment where it was not first made to appear by sworn averments of the judgment creditor that the money sought to be garnisheed was not due for the personal labor or services of a head of a family residing in the state. F.S. 77.03, 222.11.
Noland Co. v. Linning, 132 So.2d 802 (Fla. 1st DCA 1961)

 
s.127 Contest and determination of claim
Evidentiary hearing was required before court could determine whether Chapter 7 debtor, a self employed, licensed insurance broker, earned renewal commissions from insurance policies previously sold by debtor as independent contractor or as compensation for labor or personal services, as required for application of Florida statute exempting earnings of head of family that are compensation for labor or personal services; it was not clear from record at what point debtor became broker as opposed to “captive agent”, and whether renewal commissions at issue were generated by policies that debtor sold as “captive agent” or as independent broker, or combination of two, and it was unclear extent to which debtor serviced insurance contracts beyond what was minimally required to secure renewals and whether renewals were typically automatic. F.S.A. 222.11
In re Lee, 190 B.R. 953 (Bkrtcy. M.D. Fla. 1995)

Statutory provision requiring that if facts contained in affidavit claiming exemption are not timely denied under oath, writ of garnishment shall be returned and all proceedings under it shall cease must be strictly construed in favor of debtor.  F.S. 222.12.
Miami Herald Pub. Co. v. Payne, 358 So.2d 541 (Fla. 1978), opinion adopted 360 So.2d 122.

When wife filed motion for continuing writ of garnishment, but failed to deny former husband’s head of family affidavit within two days after his notice was served on her, continuing writ should have been returned to her and all garnishment proceedings should have ceased. F.S. 77.0305, 222.11, 222.12.
Vetrick v. Hollander, 566 So.2d 844 (Fla. 4th DCA 1990)

All proceedings under writ of garnishment for amount due from former husband for child support terminated by operation of law upon expiration of time for former wife’s filing of sworn denial of former husband’s affidavit of exemption on ground that he was head of a family residing within Florida and that wages to be garnished were due for his personal labor and services, notwithstanding fact that final judgment of dissolution of marriage which provided for child support was otherwise subject to enforcement by garnishment. F.S. 222.11, 222.12.
Schwarz v. Waddell, 389 So.2d 210, (Fla. 4th DCA 1980) quashed, cause remanded 405 So.2d 978, on remand 422 So.2d 61, petition for review denied 434 So.2d 889.

End of s.127


s.137
Equity has complete jurisdiction over homestead and exemptions. F.S.A. Const. Art. 10, sections 1,2.
Hillsborough Inv. Co. v. Wilcox, 13 So.2d 448, 152 Fla. 889

s.140
Equity was authorized to assume jurisdiction in suit by judgment creditor to restrain sale, in mortgage foreclosure suit, of personal property described in judgment debtor’s inventory where debtor claimed exemption. F.S.A. Const. Art 10; F.S.A. 222.06
Shollar Crate & Box Co. v. Passmore, 4 So.2d 530 (Fla. 1941), 148 Fla. 466.

s.147 Pleading

In garnishment proceeding, whether judgment debtor is head of family residing in Florida is a question of fact be alleged and proved, as respects debtor’s right to an exemption. F.S.A. Const, Art. 10.
Tracy v. Lucik, 189 So. 430, 138 Fla. 188 (Fla. 1939).

The garnishor has two days from the date of service to deny the allegations, of garnishee claiming he is exempt from garnishment under head of family exception, by contravening affidavit. F.S. 222.12
Should the garnishor fail to timely file a sworn statement disputing facts alleged to support a creditor’s exemption as head of family, all proceedings under the writ must cease. F.S. 222.12
Hill v. Haywood, 735 So.2d 539 (Fla. 2nd DCA 1999), rehearing denied, review dismissed 751 So.2d 50.

s.148 Evidence

Under Florida law, it is generally assumed that debtor is honest, and entitled to benefit of exemption, unless and until the contrary is proven.
In re Lazin, 221 B.R. 982 (Bkrtcy. M.D. Fla. 1998)

Chapter 7 debtor proved that household goods were exempt under Florida law as tenancy by the entireties property; debtor testified that goods were purchased with funds from joint account that he and wife held as tenants by the entireties and that goods were intended to be owned as tenants by the entireties.
In re Allen, 203 B.R. 786 (Bkrtcy. M.D. Fla. 1996)

Burden is on objecting party to show that party claiming exemption is not entitled to it.
In re Brown, 165 B.R. 512 (Bkrtcy. M.D. Fla. 1994)

Debtor would not be denied the $1,000 personal property exemption granted by Florida Constitution, on ground that value of personal property at issue exceeded this $1,000 cap, where creditors objecting to exemption failed to put forth any evidence as to value of assets. Fla. Const. Art. 10, s. 4(a)(2).
In re Rightmyer, 156 B.R. 690 (Bkrtcy. M.D. Fla. 1993)

Party objecting to claimed exemption has burden of proving that claim is improper.
In re Sanders, 72 B.R. 124 (Bkrtcy. M.D. Fla. 1987)

Party objecting to a Florida exemption must prove by a preponderance of the evidence that the debtor harbored the requisite fraudulent intent, which may be inferred from extrinsic evidence.
In re Simms, 243 B.R. 156 (Bkrtcy. S.D. Fla. 2000)

No presumption arises merely from character or use of personal property that it is held as estate by entireties rather than as tenancy in common for purpose of exemption in bankruptcy; rejecting Hagin v. Hagin, 353 So.2d 949, Bankr. Code. 11 U.S.C.A. s. 522(b)(2)(B).
Debtor’s testimony that he and his wife were both employed at time that household goods and furnishings were purchased, that property was bought for their joint use with their joint earnings and that debtor considered property to be jointly owned with his wife was insufficient to establish that household goods and furnishings were exempt, as against bankruptcy trustee, as estate by entirety held jointly with wife, who was not debtor.
In re Marchini, 45 B.R. 187 (Bkrtcy. S.D. Fla. 1984)

Where there was no evidence that husband considered debtor head of their family, where debtor’s own testimony in totality seemed to indicate that she did not view herself as head of whole family, and where evidence did not demonstrate that her share of income from family business was sufficient to or did support herself and children, debtor failed to overcome presumption that husband was head of family so as to be entitled to head of household bankruptcy exemption. F.S. 222.20, Fla. Const. Art. 10, s.4.
In re Schachne, 6 B.R. 236 (Bkrtcy. S.D. Fla. 1980)

In action by former wife seeking to garnish former husband’s wages to satisfy judgment she had obtained against former husband for unpaid child support, when former husband moved to dissolve garnishment and filed affidavit of exemption alleging that he was head of family, and thus, that his wages were exempt from garnishment, former wife was required to file controverting affidavit. F.S. 222.11, 222.12.
Former wife’s failure to file controverting affidavit merely operated as admission of facts alleged in former husband’s affidavit, which claimed garnishment exemption of statute governing exemption of wages from garnishment, and did not preclude trial court’s consideration of whether statute governing garnishment of amounts due for child support superceded statute governing exemption of wages from garnishment as matter of law in these circumstances. F.S. 222.11, 222.12.
Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DCA 1980), quashed, cause remanded 405 So.2d 975.


 
 
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CrzyAmerican
Life is a series of collisions with the future; it is not the sum of what we have been, but what we yearn to be.
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   Re: Questions MSJ
« Reply #62 on: June 29, 2006, 06:48:57 PM » Quote

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WHOLY!!!!!


ITS THE MOTHER LOAD!!  
 
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2006 FL Rules of Civil Procedure
Florida Northern Local rules of Civil Procedure
Searchable Florida statutes
 
 
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« Reply #63 on: June 29, 2006, 06:56:31 PM » Quote

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2000 Fla. App. LEXIS 84,*;749 So. 2d 546;
25 Fla. L. Weekly D 106
HOSPITAL CONSTRUCTORS LTD., a Florida Limited Partnership, by and through LIFEMARK HOSPITALS OF FLORIDA, INC., as General Partner, d/b/a AMI-TOWN AND COUNTRY MEDICAL CENTER, Appellant, v. DONALD L. LEFOR and BETTI LEFOR, Appellees.
Case No. 98-02014
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
749 So. 2d 546;2000 Fla. App. LEXIS 84;25 Fla. L. Weekly D 106
   January 7, 2000, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication January 31, 2000.
  PRIOR HISTORY:   Appeal from the Circuit Court for Hillsborough County; Manuel Menendez, Jr., Judge.
DISPOSITION:   Affirmed in part, reversed in part and remanded.
COUNSEL:   H. Lawrence Hardy and Renee Jordan, Fort Lauderdale, for Appellant.
 
James J. Dowling, Palm Harbor, for Appellees.
JUDGES:   SALCINES, Judge. PARKER, A.C.J., and BLUE J., Concur.
OPINIONBY:   SALCINES
 OPINION:   SALCINES, Judge.

Hospital Constructors Ltd., by and through Lifemark Hospitals of Florida, Inc., as General Partner, d/b/a AMI-Town and Country Medical Center (the hospital),
 
appeals the trial court's order which held that the hospital's claims were barred by the statute of limitations and dismissed the complaint with prejudice. We affirm in part and reverse in part.

On April 16, 1990, and May 3, 1990, the hospital provided Mr. Lefor with medical treatment. Payments were remitted to the hospital from, or on behalf of, Mr. Lefor commencing on or about March 1991, and continuing monthly through June 1993. On December 8, 1997, the hospital filed a five-count complaint. In counts one through four, the hospital asserted that Mr. Lefor had not paid for the services  [*2]  provided in 1990 and the balance was due. The fifth count alleged that Mrs. Lefor was liable for the unpaid medical bills as an unconditional guarantor in a written agreement. Lefors filed a motion to dismiss all counts asserting the actions were barred by the statute of limitations. The trial court granted the motion with prejudice.

A motion to dismiss for failure to state a cause of action tests the legal sufficiency of a complaint and the trial court must confine itself strictly to the four corners of the complaint. See McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 215 (Fla. 2d DCA 1998).
All factual allegations of the complaint are considered to be true and must be construed in the light most favorable to the nonmoving party. See Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d 1028, 1030 (Fla. 4th DCA 1994).
 
The statute of limitations on a legal or equitable contract or obligation not founded on a written instrument is four years. See § 95.11(3)(k), Fla. Stat. (1990). When an action is based upon an obligation founded on a written instrument, the statute  [*3]  of limitations is five years. See § 95.11(2)(b), Fla. Stat. (1990).
The payment of any part of the principal or interest of any obligation or liability founded on a written instrument tolls the running of the time under any statute of limitations. See § 95.051(1)(f), Fla. Stat. (1990). See Chaplin v. Cooke, 432 So. 2d 778, 779 (Fla. 1st DCA 1983).
 

The causes of action in counts one through four against Mr. Lefor were barred by the four year statute of limitation because the hospital did not base its allegations upon any written agreement made by him.
We affirm the dismissal of these counts. However, the hospital's cause of action against Mrs. Lefor, which alleged that she was a guarantor in a written agreement, was not barred because the five year statute of limitation was tolled by the payments made to the hospital through June 1993. See § 95.051(1)(f).
Therefore, based on the allegations, the cause of action against Mrs. Lefor as guarantor in count five was extended until June 1998. The dismissal of count five of the complaint is reversed and this matter is remanded for further proceedings.

Affirmed  [*4]  in part, reversed in part and remanded.
 
PARKER, A.C.J., and BLUE J., Concur.
 
 
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« Reply #64 on: June 29, 2006, 07:08:46 PM » Quote

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I may have already tossed this one in, but in the case I did not:


The defense of statute of limitations may be raised by a motion to dismiss where its violation appears on the face of the complaint or exhibits. Fla. R. Civ. P. 1.110(d), 1.140(b); Toledo Park Homes v. Grant, 447 So. 2d 343, 344 (Fla. 4th DCA 1984)(citation omitted).
 
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   Re: Questions MSJ
« Reply #65 on: June 29, 2006, 07:11:39 PM » Quote

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Card holder agreement – anonymous document – no proof that it applies to any agreement with any party.

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2003 Fla. App. LEXIS 15078,*;861 So. 2d 64;
28 Fla. L. Weekly D 2305
BARBARA SAENZ, Appellant, vs. STATE FARM FIRE AND CASUALTY COMPANY, and RICHARD GOLDSMITH, Appellees.
CASE NO. 3D01-3034
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
861 So. 2d 64;2003 Fla. App. LEXIS 15078;28 Fla. L. Weekly D 2305
        October 8, 2003, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing denied by Saenz v. State Farm Fire & Cas. Co., 2003 Fla. App. LEXIS 20357 (Fla. Dist. Ct. App. 3d Dist., Dec. 10, 2003)
Released for Publication December 10, 2003.
 PRIOR HISTORY:   An appeal from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. LOWER TRIBUNAL NO. 96-11862.
DISPOSITION:   Affirmed.
COUNSEL:   Liggio, Benrubi & Williams, and Richard M. Benrubi, and Jeffrey M. Liggio (West Palm Beach); Barbara Green, for appellant.
 
Adorno & Yoss, P.A., and Jack R. Reiter, and William S. Berk, for appellees.
JUDGES:   Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ. GREEN, J.
OPINIONBY:   GREEN
OPINION:   GREEN, J.

Appellant, Barbara Saenz, appeals from a final summary judgment entered in favor of Appellees, State Farm Fire and Casualty Company ("State Farm") and its agent, Richard Goldsmith, on her claims of malicious prosecution and bad faith; and from the dismissal of her breach of contract claim. We affirm.

Saenz bought a house, through foreclosure, in a completely "gutted" state. Between 1988 and 1991, Saenz rebuilt and renovated the house into move-in condition. She moved into the home in January, 1992. Following Hurricane Andrew, Saenz submitted a claim to State Farm, her insurance carrier, for building/personal property coverage and for additional living expenses ("ALE"). In January,  [*2]  1993, State Farm inspected the home and paid Saenz $ 497,405.24. This payment was partially based on Saenz's submission of a contract from a construction company and also included certain personal property benefits paid at actual cash value. Pursuant to its policy, State Farm withheld replacement benefits from Saenz until receipts for the items replaced were produced.

In July, 1993, producing the receipts, Saenz requested additional replacement cost benefits and ALE reimbursement. She was paid an additional $ 3,466.20 for her personal property. State Farm deferred paying the ALE request without additional proof of claim. In September, 1993, a State Farm representative visited Saenz's home and determined the house was in the same condition as it had been during the initial post-loss photographs. Thereafter, the State Farm representative discovered that Saenz's home had been under renovation since May 1986 -- years before Hurricane Andrew. In addition, State Farm's representative searched the public records and found no indication of the identity of a contractor on the home (despite Saenz's presentation of the contract from Shear Construction), nor did the records show that any of the  [*3]  renovations on the house were complete prior to Hurricane Andrew. The representative, thereafter, referred this matter to Goldsmith, a team manager for State Farm's Special Investigative Unit, to investigate for possible fraud.

In October, 1993, Goldsmith contacted Saenz to advise her that she was under investigation for fraud, and requested a post-claim inspection of her records. Saenz, in turn, told Goldsmith that she and her daughter had purchased the home at a foreclosure sale in 1988, that the structure had been completely renovated by December, 1991, and that she didn't provide State Farm with a certificate of occupancy because she was advised by the city that she need not apply for one. The parties arranged a meeting where Goldsmith would be able to review the bills and receipts regarding the renovations. This meeting was cancelled by Saenz, who was then informed that State Farm would not provide further payments without the submission of the requested proof of renovation. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Saenz contends that she provided Goldsmith with a summary of her expenses. Goldsmith, however, claims that he told Saenz that State Farm required documentation reflecting the renovations, not an unverified summary.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*4]  

Goldsmith personally visited the Coral Gables Building and Zoning Department and confirmed that Saenz's house had been under renovation for years with no evidence that the renovations were completed before Hurricane Andrew. Moreover, Saenz had submitted receipts for the rental of two storage units following the hurricane, and Goldsmith learned that one of these units had been rented eight months prior to the hurricane. By the end of December, 1993, Saenz had yet to submit her renovation receipts and Goldsmith, pursuant to section 626.989(6), Florida Statutes, referred Saenz's claim to the Department of Insurance, Division of Insurance Fraud ("DIF"). n2 DIF assigned the case to Investigator Maureen Murphy-Perez, who conducted her own independent investigation of Saenz. Murphy-Perez went to the Building and Zoning Department, and also subpoenaed both Florida Power and Light and Southern Bell to determine if Saenz had occupied the house prior to Hurricane Andrew. She found that there had been no phone or electrical service in the house. In addition, Murphy-Perez also discovered fraudulent receipts in the claims file which, in her opinion, presented evidence  [*5]  of fraud.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 Section 626.989(6) provides in pertinent part that:

any insurer, agent, or other person licensed under the code, or an employee thereof, having knowledge or who believes that a fraudulent insurance act or any other act or practice which, upon conviction, constitutes a felony or a misdemeanor under the code, or under s. 817.234, is being or has been committed shall send to the Division of Insurance Fraud a report or information pertinent to such knowledge or belief and such additional information relative thereto as the department may require.
 
§ 626.989(6), Fla. Stat. (1992).
 

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Murphy-Perez issued a complaint/arrest warrant charging Saenz with violations of sections 817.234 n3 and 812.014 n4, Florida Statutes.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 This statute provides in pertinent part that:

(1)(a) Any person who, with the intent to injure, defraud, or deceive any insurance company . . .:

1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; or
 
2. Prepares or makes any written or oral statement that is intended to be presented to any insurance company in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim,
 
is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
 
§ 817.234(1)(a), Fla. Stat. (1991).  [*6]  


n4 This statute reads:

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit therefrom.

(b) Appropriate the property to his own use or to the use of any person not entitled thereto.
 
§ 812.014(1), Fla. Stat. (1991).
 

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In the arrest affidavit, Murphy-Perez identified five suspicious receipts for reimbursement of personal property that had never been purchased or replaced. Based upon this affidavit, the State Attorney's office concluded that there was probable cause for the issuance of a criminal information against Saenz. Subsequently, the office decided not to proceed with the criminal prosecution and nolle prossed the charges against Saenz.

Saenz then filed a civil complaint against Goldsmith and State Farm for malicious prosecution and negligence on the part of State Farm in the hiring, training, and supervising of Goldsmith. This complaint, pursuant to an agreed order, was  [*7]  dismissed and Saenz filed an amended complaint. The amended complaint was dismissed by the trial court. Saenz filed a second amended complaint which again claimed that State Farm and Goldsmith should be liable for malicious prosecution because they instituted a criminal complaint against her, and that State Farm was liable in negligence for the hiring, training, and supervision of Goldsmith. In addition, Saenz added a third count against State Farm for bad faith.

Over three years after Saenz filed her original complaint, she filed a motion to amend and a third amended complaint. This complaint again claimed that Goldsmith and State Farm had maliciously and in bad faith accused Saenz of insurance fraud. For the first time, however, this third amended complaint included a count against State Farm for breach of contract. State Farm moved to dismiss this count claiming that it was barred by the statute of limitations.

Before the court could rule on State Farm's motion, Saenz sought to amend her complaint yet a fourth time to add the State of Florida Department of Insurance and Murphy-Perez as parties. Thereafter, State Farm and Goldsmith moved to dismiss the fourth amended complaint,  [*8]  which was granted as to the breach of contract count. They also filed a motion for summary judgment for the malicious prosecution and negligent hiring claims. Following a hearing, the court granted the motion for summary judgment and entered final summary judgment, finding as a matter of law that State Farm and Goldsmith were immune from liability under Florida Statute 626.989, the Insurance Fraud Statute. The court also found that State Farm and Goldsmith were entitled to judgment on the claim for malicious prosecution, because Saenz "failed to present evidence" that the defendants instituted or continued a criminal prosecution. This appeal followed.

Section 626.989 provides insurers and their employees immunity from civil actions, absent fraud or bad faith, arising out of the furnishing of information required by the statute. Specifically, with regard to immunity, the statute provides that:

In the absence of fraud or bad faith, a person is not subject to civil liability for libel, slander, or any other relevant tort by virtue of filing reports, without malice, or furnishing other information, without malice, required by this section or required by the  [*9]  department or division under the authority granted in this section, and no civil cause of action of any nature shall arise against such person:

1. For any information relating to suspected fraudulent insurance acts furnished to or received from law enforcement officials, their agents, or employees;

2. For any information relating to suspected fraudulent insurance acts furnished to or received from other persons subject to the provisions of this chapter; or
 
3. For any such information furnished in reports to the department, division, or the National Association of Insurance Commissioners.
 
§ 626.989(4)(c), Fla. Stat. (1993).

The undisputed record evidence shows that Goldsmith referred this matter to DIF based on Saenz's failure to document that her home had been under renovation prior to Hurricane Andrew. Thereafter, DIF conducted an independent investigation and determined that Saenz had presented State Farm fraudulent receipts. Following the investigation, the State Attorney's office found probable cause to bring criminal charges against Saenz. Based upon the undisputed record evidence, we agree with the trial court that as a matter of law, neither  [*10]  Goldsmith nor State Farm acted fraudulently or with bad faith. Thus, we find that the appellees were statutorily immune from suit and affirm the final summary judgment. See Zellermaier v. Travelers Indem. Co. of Ill., 190 Misc. 2d 487, 739 N.Y.S.2d 922, 924 (N.Y. Gen. Term 2002)("Since plaintiff has not presented evidentiary proof of fraud or bad faith in either the allegations of the complaint or in papers opposing [summary judgment], the Court grants . . . summary judgment[.]"). See also Pearce v. U.S. Fid. & Guar. Co., 476 So. 2d 750, 752-53 (Fla. 4th DCA 1985)("Section [626.989(4)(c)] immunizes specified persons, if they have done what the section requires or what the Insurance Fraud Division requires pursuant to its authority under the statute . . . [from] all civil causes of action based upon conduct under the statutory section."). Moreover, the fact that the state attorney's office declined for whatever reason to proceed with its prosecution against Saenz does not vitiate its initial probable cause finding in the fraud matter. Thus, for this additional reason, summary judgment was proper. See Jack Eckerd Corp. v. Smith, 558 So. 2d 1060 (Fla. 1st DCA 1990)  [*11]  (legal malice, which is the absence of probable cause, must be proved to recover compensatory damages in malicious prosecution action.).

Likewise, we affirm the court's dismissal of Saenz's breach of contract claim on statute of limitation grounds. Florida Statute 95.11 limits the time period to bring an action on a contract or written instrument to five years. n5 This time period, in breach of insurance contract actions, begins to run from the date of the alleged breach. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996)(statute of limitations for action based on insurer's failure to pay benefits begins to run when insurer breaches its obligation to pay). According to Saenz's fourth amended complaint, the breach in this case took place on or before November 23, 1993. The third amended complaint, which first raised the breach of contract count, was filed August 19, 1999, well after the expiration of the limitation period. Accordingly, dismissal was proper.

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n5 Specifically the statute provides:

Actions other than for recovery of real property shall be commenced as follows:

* * * *

(2) WITHIN FIVE YEARS.--

* * * *

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
 
§ 95.11(2)(b), Fla. Stat. (1993).
 

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Affirmed.


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2003 Fla. App. LEXIS 7948,*;847 So. 2d 1048;
28 Fla. L. Weekly D 1287
J.J. GUMBERG CO., a Delaware corporation, Appellant, v. JANIS SERVICES, INC., a Florida corporation, and COLONIA INSURANCE COMPANY, a Delaware corporation, Appellees.
CASE NO. 4D02-1953
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
847 So. 2d 1048;2003 Fla. App. LEXIS 7948;28 Fla. L. Weekly D 1287
         May 28, 2003, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing denied by J.J. Gumberg Co. v. Janis Scrives, Inc., 2003 Fla. App. LEXIS 11095 (Fla. Dist. Ct. App. 4th Dist., July 8, 2003)
 PRIOR HISTORY:   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; J. Leonard Fleet, Judge; L.T. Case Nos. 97-12195(08) & 01-17838(13).
DISPOSITION:   AFFIRMED in part; REVERSED in part.
COUNSEL:   Caryn L. Bellus and Valentina Tejera of Kubicki Draper, Miami, for appellant.
 
Jerome A. Pivnik of Pivnik & Nitsche, P.A., Miami, for appellee, Janis Services, Inc.
JUDGES:   STEVENSON and HAZOURI, JJ., concur. MAY, J., concurs in result only.
 OPINION:   PER CURIAM.

Appellant, J.J. Gumberg Co. (Gumberg), appeals from the dismissal with prejudice of the complaint it filed against appellee, Janis Services, Inc. (Janis), in October 2001. We affirm in part and reverse in part.

In May 1994, Janis entered into a construction contract to remodel the food court at the Coral Ridge Mall which was maintained and operated by Gumberg. On June 29, 1994, an employee of Janis, Samuel Green, was injured while working at the Mall. Green filed suit against Gumberg in case number 97-12195 and Gumberg filed a third party complaint containing three counts against  [*2]  Janis. Count I was for contractual indemnity, Count II was for contribution, and Count III was for common law indemnity. Upon Janis's motion to dismiss, Counts II and III were dismissed with prejudice and the remaining count, alleging contractual indemnity, was set for trial in January 2001.

Shortly before trial, Gumberg filed a motion for leave to amend its third party complaint to amend its claim for contractual indemnity and add two claims for breach of contract, and one for declaratory relief. The trial court denied the motion to amend. Gumberg settled with Green and the trial court entered a partial order of dismissal. Gumberg renewed its motion to amend which the trial court denied. The contractual indemnity suit against Janis remains pending.

In October 2001, Gumberg filed a new complaint against Janis and Colonia Insurance Company, Janis's insurance company. There were two counts against Janis for breach of the construction contract and one count for declaratory relief against Janis and Colonia. These counts were essentially the same as three of the counts proposed in Gumberg's motion to amend in case number 97-12195. This new cause, case number 01-17838, was transferred  [*3]  to the trial judge presiding over case number 97-12195.

Janis then filed a motion to dismiss Gumberg's new complaint arguing that each claim was barred by the statute of limitations n1 and further that the claims should be dismissed for improper splitting of causes of action. The trial court granted the motion to dismiss with prejudice as to all three counts without stating the grounds for its dismissal.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Section 95.11(2)(b), Florida Statutes (1994), provides:

Actions other than for recovery of real property shall be commenced as follows:

. . .

(2) Within five years.--

. . .
 
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
 

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The two claims for breach of contract are based upon Gumberg's allegations that Janis breached the provisions of the contract requiring Janis to obtain liability insurance and to keep the construction area clean and follow safety precautions. In Abbott Lab., Inc. v. Gen. Elec. Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000),  [*4]  the court held that "under section 95.11(2)(b), the limitations period begins to run when 'the last element constituting the cause of action occurs.' § 95.031(1), Fla. Stat. (1997). The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages."

Assuming that Janis breached the contract by failing to obtain liability insurance and by failing to clean up and maintain safety precautions at the time Green was injured in June of 1994, all the elements for a cause of action for breach of contract existed. Therefore, the trial court correctly dismissed these two claims as they are barred by the statute of limitations.

In the third count, Gumberg brought a declaratory judgment action against Janis and Colonia asking the trial court to determine the rights of Gumberg under the insurance policy issued to Janis. The issues for determination are whether Gumberg was an additional insured under the policy at the time of Green's accident and whether Gumberg was entitled to coverage and a defense from Colonia. In this claim, the contract at issue is the insurance contract between Janis and Colonia. "In regard to insurance  [*5]  contracts, a specific refusal to pay a claim is the breach which triggers the cause of action and begins the statute of limitations running." Donovan v. State Farm Fire and Cas. Co., 574 So. 2d 285, 286 (Fla. 2d DCA 1991). When Gumberg settled Green's negligence action in January 2001, the issue of coverage under the insurance policy became ripe for determination. Therefore, this declaratory judgment action was filed well within the statute of limitations.

Janis further argues that this claim was properly dismissed because there was an improper splitting of a cause of action. This rule is inapplicable here because Gumberg has not previously filed any action on Gumberg's right to insurance coverage under Janis's insurance policy purchased through Colonia.

Although the statute of limitations has run on Gumberg's claims for breach of contract between Gumberg and Janis, this does not preclude the declaratory judgment action for a determination as to whether coverage exists for Gumberg under the policy of insurance purchased by Janis from Colonia. The declaratory judgment action will determine whether there is coverage for Gumberg. It is unclear why Gumberg chose to make  [*6]  Janis a party to the declaratory judgment action but that issue is not before us.

Based upon the foregoing, we affirm the trial court's dismissal of the two causes of action for breach of contract. We reverse the dismissal of the declaratory judgment action and remand for further proceedings.

AFFIRMED in part; REVERSED in part.
 
STEVENSON and HAZOURI, JJ., concur.
 
MAY, J., concurs in result only.



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2003 Fla. App. LEXIS 11,*;833 So. 2d 873;
28 Fla. L. Weekly D 155
CARTAN TOURS, INC., a Delaware corporation, Appellant, v. ESA SERVICES, INC., a Delaware corporation, Appellee.
CASE NO. 4D02-874
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
833 So. 2d 873;2003 Fla. App. LEXIS 11;28 Fla. L. Weekly D 155
  January 2, 2003, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication January 21, 2003.
  PRIOR HISTORY:   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert B. Carney, Judge; L.T. Case No. 01-020495 CACE (04).
DISPOSITION:   REVERSED AND REMANDED.
COUNSEL:   Kenneth B. Robinson and Noam J. Cohen of Rice, Pugatch, Robinson & Schiller, P.A., Miami, and Jesse H. Diner of Atkinson, Diner, Stone, Mankuta & Ploucha, P.A., Hollywood, for appellant.
 
Richard Lydecker and Peter Hoogerwoerd of Lydecker & Associates, P.A., Miami, for appellee.
JUDGES:   POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.
OPINION:  
 
PER CURIAM.

Plaintiff Cartan Tours, Inc. ("Cartan") filed suit seeking declaratory judgment as to its rights and obligations under a contract with Defendant ESA Services, Inc. ("ESA"), and the return of its payments made under the agreement. ESA moved for judgment on the pleadings, and Cartan appeals the final judgment in favor of ESA. We reverse the trial court's order with instructions to reinstate Cartan's complaint.

Cartan set forth the following facts in its complaint. Cartan and ESA are both Delaware corporations, and ESA's principal place of business is in Fort Lauderdale, Florida. ESA manages  [*2]  and operates hotels and motels under the name of 'Extended Stay America' Cartan managed corporate Olympic programs for the 2002 Salt Lake City Winter Olympic Games, and in that capacity entered into the Salt Lake City Olympic Games Hotel Agreement ("Hotel Agreement") with ESA. Under the Hotel Agreement, Cartan was to pay $ 2,452,800.00 in exchange for the license of 372 rooms at three sites in Salt Lake City during the Olympics. Cartan has paid the full $ 2,452,800.00 to ESA.

The Hotel Agreement contains a force majeure clause as follows:

In the event of material acts, including without limitation, civil disorder, strikes, government actions, terrorism, or other material acts beyond the reasonable control of either party to this Agreement, and affecting the ability of the Olympic Games to be held, the Hotel shall refund to Cartan all RLC payments made by Cartan pursuant hereto . . . .
 
(emphasis added).

The complaint goes on to describe the acts of terrorism that took place on September 11, 2001, the delivery of anthrax-contaminated letters in Florida, New York, and Washington D.C., the war against terrorism including hostilities in Afghanistan, and the public perception  [*3]  that the Olympics are a likely target of terrorists. These circumstances, Cartan alleged, "have drastically affected the ability of the Olympic Games to be held in a manner reasonably contemplated by the parties at the time they entered into the Hotel Agreement."

ESA filed a motion for judgment on the pleadings, arguing that the events described in the complaint did not affect "the ability of the Olympic Games to be held," and that "the complaint is hopelessly riddled with pure speculations concerning why Cartan feels the general public is not purchasing Cartan's tour packages to Salt Lake City . . . ." ESA argued that because the Olympics were going forward, as conceded in the complaint, the facts Cartan set forth were not sufficient to trigger the force majeure clause.

One of the points Cartan raises on appeal is that the phrase "affecting the ability of the Olympic Games to be held" is ambiguous, requiring the court to look to extrinsic materials to determine the intent of the parties. See Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So. 2d 468, 471 (Fla. 4th DCA 2000) (in construing ambiguous contract term, ruling as to parties' intent will  [*4]  be sustained if supported by competent, substantial evidence); Elmore v. Enterprise Developers, Inc., 418 So. 2d 1078, 1080 (Fla. 4th DCA 1982) (court may look to extrinsic evidence to determine parties' intent in construing ambiguous terms of agreement). Because construction of the ambiguous language requires that the court look beyond the pleadings, and judgment on the pleadings is limited strictly to the pleadings, it was error for the trial court to grant ESA's motion. See Krieger v. Ocean Properties, LTD, 387 So. 2d 1012, 1013 (Fla. 4th DCA 1980) (citing McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976) (judgment on the pleadings is limited wholly to the pleadings). We agree.

In considering a motion for judgment on the pleadings, courts must take the well-pleaded allegations of the party opposing the motion as true, and the allegations of the moving party that have been denied as false. Windle v. W.W. Windle Co., 731 So. 2d 36, 37 (Fla. 4th DCA 1999); General GMC Truck Sales and Serv. Inc., v. J.D. Simm, 430 So. 2d 998, 999 (Fla. 4th DCA 1983). Motions for judgment on the pleadings must  [*5]  be decided wholly on the pleadings, without the aid of outside matters. Krieger, 387 So. 2d at 1013.

Because the phrase "affecting the ability of the Olympic Games to be held" could reasonably mean preventing the games altogether as ESA contends, or simply affecting them as Cartan urges, it is ambiguous. Yardum v. Scalese, 799 So. 2d 382, 383 (Fla. 4th DCA 2001) ("Where a written instrument lends itself to more than one reasonable interpretation, it is ambiguous and therefore summary judgment is improper for either party."). As such, relief on the pleadings was improper because the ambiguity requires the court to look beyond the pleadings to interpret the language of the contract. Krieger, 387 So. 2d at 1013; Dinallo, 768 So. 2d at 471.

Accordingly, we reverse the order granting ESA's motion for judgment on the pleadings, with instructions to reinstate Cartan's complaint.

REVERSED AND REMANDED.
 
POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.


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2002 Fla. App. LEXIS 19256,*;833 So. 2d 286;
28 Fla. L. Weekly D 141
CONTRACTORS UNLIMITED, INC., AND GLENNON WADE, Appellants, v. NORTRAX EQUIPMENT COMPANY SOUTHEAST, ETC., Appellees.
Case No. 5D02-959
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
833 So. 2d 286;2002 Fla. App. LEXIS 19256;28 Fla. L. Weekly D 141
  December 27, 2002, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication January 15, 2003.
  PRIOR HISTORY:   Non-Final Appeal from the Circuit Court for Osceola County, Jeffords D. Miller, Judge.
DISPOSITION:   AFFIRMED in part; REVERSED in part and REMANDED.
COUNSEL:   Patrick C. Crowell of Patrick C. Crowell, P.A., Orlando, for Appellants.
 
Michael A. Linsky of Linsky & Reiber, Tampa, for Appellees.
JUDGES:   COBB, J. SHARP, W. and ORFINGER, JJ., concur.
OPINIONBY:   COBB
OPINION:  
 
COBB, J.

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  [*2]  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. H&H 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  [*3]  P. Trawick, Florida Practice and Procedure, 25-4, at 412 (2001 ed.). A pa
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2002 Fla. App. LEXIS 16952,*;829 So. 2d 1003;
27 Fla. L. Weekly D 2477
ROBERT G. GALLAGHER a/k/a BOBBY FREEMAN and BETTY PANNELL FRANKLIN, Appellants, v. DALE G. MASSAD, Appellee.
CASE NO. 2D01-617
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
829 So. 2d 1003;2002 Fla. App. LEXIS 16952;27 Fla. L. Weekly D 2477
   November 15, 2002, Opinion Filed
SUBSEQUENT HISTORY:   Released for Publication December 4, 2002. Review denied by Gallagher v. Massad, 842 So. 2d 843, 2003 Fla. LEXIS 613 (Fla., 2003)
US Supreme Court certiorari denied by Gallagher v. Massad, 2004 U.S. LEXIS 1072 (U.S., Feb. 23, 2004)
  PRIOR HISTORY:    [*1]  Appeal from the Circuit Court for Pinellas County; Charles W. Cope, Judge.
DISPOSITION:   Affirmed in part, reversed in part, and remanded.
COUNSEL:   Robert G. Gallagher a/k/a Bobby Freeman and Betty Pannell Franklin, Pro se.
 
Dennis R. Pemberton of Harper, Kynes, Geller & Buford, P.A., Clearwater, for Appellees.
JUDGES:   SILBERMAN, Judge. ALTENBERND and FULMER, JJ., Concur.
OPINIONBY:   SILBERMAN
 OPINION:  
SILBERMAN, Judge.

Robert G. Gallagher and Betty Pannell Franklin appeal the final judgment in favor of Dale G. Massad. We reverse the final judgment to the extent that it awarded damages arising from a 1987 loan because enforcement of that loan was barred by the statute of limitations. We affirm without comment the other issues raised by Gallagher and Franklin.

In January 1999 Massad filed a complaint against Gallagher and Franklin for money lent. He later amended the complaint to add a claim for fraud. Massad's claims arose from a series of five loans that he made to Gallagher and Franklin, totaling $ 78,856. One loan was made in January 1987 in the amount of $ 10,000. The other loans were made in 1997 and 1998. Massad alleged  [*2]  that each loan was to be repaid within ninety days from the date of the loan and that Gallagher and Franklin failed to repay any of the loans.

Although Gallagher and Franklin asserted that any claim relating to the 1987 loan was barred by the applicable statute of limitations, the trial court entered judgment in favor of Massad on all claims. As a result, Gallagher and Franklin argue that the trial court erred by awarding damages for the 1987 loan.

The 1987 loan was not based on a written instrument; therefore, any lawsuit for money lent or for fraud had to commence within four years of when the cause of action accrued. See §§ 95.031, 95.11(3)(j),(k), Fla. Stat. (1987). Based on the record before us, it appears that Massad's cause of action accrued in 1987 but he did not file suit until 1999.

In his brief, Massad properly concedes that the time for commencing a lawsuit on the 1987 loan expired prior to the time that he filed suit. Accordingly, we reverse the final judgment to the extent that it awarded $ 10,000 for the 1987 loan and prejudgment interest relating to that loan. n1 On remand, the trial court shall enter an amended final judgment in favor of Massad omitting any  [*3]  award of damages arising from the 1987 loan.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 We note that the final judgment contains a scrivener's error in that it refers to the 1987 loan as being made in 1997.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Affirmed in part, reversed in part, and remanded.
 
ALTENBERND and FULMER, JJ., Concur.


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2002 Fla. App. LEXIS 8569,*;821 So. 2d 350;
27 Fla. L. Weekly D 1426
JAMIE DELISSIO, Appellant, v. MICHAEL JOSEPH DELISSIO, Appellee.
CASE NO.: 1D00-3705
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
821 So. 2d 350;2002 Fla. App. LEXIS 8569;27 Fla. L. Weekly D 1426
  June 20, 2002, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied July 25, 2002. Released for Publication August 12, 2002. Review denied by Delissio v. Delissio, 2003 Fla. LEXIS 615 (Fla., Mar. 25, 2003)
  PRIOR HISTORY:   An appeal from the Circuit Court for Leon County. Kathleen F. Dekker, Judge.
DISPOSITION:   AFFIRMED.
COUNSEL:   Paula L. Walborsky and Mari M. Presley, Tallahassee, for Appellant.
 
Linda G. Miklowitz, Tallahassee, for Appellee.
JUDGES:   ALLEN, C.J., AND VAN NORTWICK, J., CONCUR, AND BROWNING, J., DISSENTS WITH WRITTEN OPINION.
OPINION:  
 
PER CURIAM.

Jamie Delissio (the former wife) appeals a non-final post-dissolution order requiring Michael Joseph Delissio (the former husband) to pay certain expenses relating to the college education of the parties' only child, Cara, pursuant to the parties' Marital and Property Settlement Agreement (the Agreement). n1 The former wife argues that the trial court erred in awarding less than required under the Agreement because the trial court misinterpreted the term "room and board" to mean only the cost of a college dormitory room. We affirm because the express terms of the Agreement did not require an award greater than the amount specified in the order under review.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 We have jurisdiction to review this non-final order pursuant to rule 9.130(a)(4), Florida Rules of Appellate Procedure.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*2]  

The parties were divorced by final judgment of dissolution of marriage in February 1997. The final judgment incorporated the Agreement. The parties had one minor child, Cara. After the dissolution, the former husband moved to Houston, Texas.

Under paragraph 8 of the Agreement, the former husband's obligation to contribute to Cara's college education was described, as follows:

[The former husband] agrees to contribute to the secondary education (i.e. College/University) for [Cara]. Such contribution by [the former husband] shall be up to but not to exceed fifty percent of the costs for tuition, books, and room and board for [Cara], so long as she is attending college with a reasonable date of expected graduation.

In August 1998, Cara enrolled in Florida State University (FSU) and has attended FSU every semester since her enrollment. From December 1999 through April 2000, Cara lived with a roommate in an apartment. Cara wrote to her father, outlining her anticipated expenses and requesting his help with those expenses. The former husband replied that he could afford to pay only $ 150 per month toward Cara's living expenses. He offered to let her live with him and  [*3]  attend the University of Houston; and suggested that she obtain a student loan, find a less expensive apartment and look for additional roommates. At the time of the final hearing, the former husband had paid $ 235 toward Cara's college expenses.

At the hearing below, Cara testified that, since the former husband did not provide her any financial assistance, she was required to live with the former wife, who, except for one semester, had paid all of Cara's actual living expenses. The former wife estimated that Cara's monthly living expenses while living with her were $ 325 for room and $ 200 for food. The former wife computed these estimated expenses based upon, in part, the room costs for a student living on campus estimated by FSU. The former wife proposed to the trial court two alternative methods by which the trial court could establish the former husband's obligation to pay for a portion of costs already expended for Cara's tuition, books, room and board. The first method would require the former husband to pay one-half of the estimated expenses incurred by Cara and by the former wife for Cara's room, board, tuition and books. The second method would require the former husband  [*4]  to pay all of the estimated expenses for room, board, tuition and books, reduced by the amount of the grants and scholarships received by Cara.

After the hearing, the trial court entered an order providing, in part, as follows:

3. It is not necessary to determine whether the Former Husband's promise to pay specific college expenses in the instant marital settlement agreement is either a support provision or a property provision. However, it is a binding obligation that is enforceable by this Court.

4. Former Husband is obligated to pay 50% of the hard costs for tuition, books, and room and board. The daughter has fulfilled the condition that she be attending college with a reasonable date of expected graduation.

5. The Court finds that tuition and fees to date are $ 4,278.00. Books and supplies, which the Court finds reasonable, would be $ 1,166.00. The Court does not find that there is any additional sums for room and board that is within the contemplation of paragraph 8. The Court interprets the phrase "room and board" to refer to an on campus dormitory setting. An apartment is not "room and board."

6. Former Husband claims offsets against the tuition and books of the  [*5]  scholarships and grants that the parties' child has been awarded. The Court rejects this argument. There is no such provision conditioning Former Husband's contribution on any kind of set off. Therefore, total sums for tuition and books equal $ 5,944.00 ($ 4278 + 1666-2= $ 2,972 with a credit of $ 235 which the parties agree Former Husband has contributed toward the college expenses, leaving Former Husband a balance of $ 2,737, which should accrue interest . . .).

The former wife appeals, arguing only that the trial court erred in failing to award an amount for the cost of Cara's room and board. The former husband has not filed a cross-appeal.

The former husband does not contest the trial court's ruling that paragraph 8 constitutes a binding obligation on him. Compare May v. Sessums & Mason, P.A., 700 So. 2d 22, 26-27 (Fla. 2d DCA 1997); see also Charles v. Leavitt, 442 S.E. 2d 241, 242 (Ga. 1994). The former husband agrees that he is obligated to pay up to fifty percent of the cost of Cara's books, tuition, room and board. He contends, however, that since Cara was receiving grants and scholarships, his obligation was only for up to fifty percent  [*6]  of the costs above that covered by grants and scholarships. Further, the former husband argues that the former wife's estimates of Cara's share of the rent, utilities and food were too high. Finally, he submits that paragraph 8 of the Agreement did not obligate him to pay fifty percent of Cara's expenses, but only "up to," and not to exceed, fifty percent; and that the order should be affirmed because the amount awarded by the trial court was consistent with his obligations under paragraph 8.

"A separation agreement entered into by the parties and ratified by the trial court is a contract, subject to interpretation like any other contract." Bingemann v. Bingemann, 551 So. 2d 1228, 1231 (Fla. 1st DCA 1989), rev. denied, 560 So. 2d 232 (Fla. 1990). "Interpretation of a marital settlement agreement as with a contract is a matter of law putting the appellate court on equal footing with the trial court as interpreter of the written document." Ballantyne v. Ballantyne, 666 So. 2d 957, 958 (Fla. 1st DCA 1996); see also McIlmoil v. McIlmoil, 784 So. 2d 557 (Fla. 1st DCA 2001). Our standard of review is de novo. See  [*7]  Gibbs Constr. Co. v. S.L. Page Corp., 755 So. 2d 787, 790 (Fla. 2d DCA 2000).

Contract terms are given their plain meaning in the absence of any evidence that the parties intended the words to have a special meaning. See Bingemann, 551 So. 2d at 1231. "Where the terms of the agreement are unambiguous, the court will treat the written instrument as evidence of the meaning of the contract and the parties' intention thereto." Id. at 1231-1232. Courts are not to isolate a single term or group of words and read that part in isolation; the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose. See Brown v. Travelers Ins. Co., 649 So. 2d 912, 914-915 (Fla. 4th DCA 1995). Further, a court may not remake an agreement between the parties and, if there is any ambiguity, the agreement will be interpreted in accordance with the best interest of the children concerned. See Bingemann, 551 So. 2d at 1232; see also Ballantyne, 666 So. 2d at 958-959. "In construing a contract, the court should place itself as nearly as possible  [*8]  in the position of the parties when the contract was executed, and should consider the object sought to be accomplished by the agreement." Bingemann, 551 So. 2d at 1232; see also Ballantyne, 666 So. 2d at 959.

We agree with the former wife that nothing in the Agreement requires Cara to reside in a dormitory or restricts the term "room and board" to the cost of a college dormitory room and meal plan. See Bingemann, 551 So. 2d at 1232-33; see also Reynolds v. Diamond, 605 So. 2d 525 (Fla. 4th DCA 1992)(father's obligation to pay child's "college expenses" includes obligation to pay for room and board). We reject, however, the former wife's claim that the trial court erred in not requiring, pursuant to Paragraph 8 of the Agreement, the former husband to pay a greater portion of the expenses for "tuition, books, room and board." Regardless of what might be considered a reasonable interpretation of the terms "tuition, books, room and board," the amount awarded by the trial court is not legally insufficient under the plain language of the Agreement. Paragraph 8 of the Agreement establishes the former husband's obligation  [*9]  to contribute to Cara's college education to an amount "up to but not to exceed fifty percent" of the designated expenses. This plain language does not obligate the former husband to pay one-half of these expenses. Rather, it obligates him to pay only "up to but not to exceed" one-half. Based upon the competent substantial evidence in the record introduced by the former wife and found reasonable by the trial court, the trial court's award is consistent with the former husband's contractual obligations under Paragraph 8. Because the Agreement did not obligate the former husband to pay any more than the amount awarded in the order under review, the former wife's argument on appeal fails.

AFFIRMED.
 
ALLEN, C.J., AND VAN NORTWICK, J., CONCUR, AND BROWNING, J., DISSENTS WITH WRITTEN OPINION.
DISSENTBY:   BROWNING
 DISSENT:   BROWNING, J., dissents.

The majority admits the trial court erred, but affirms on a basis not argued by the appellee (the former husband) or appellant (former wife) in the trial court or this court. Accordingly, I dissent.

Significantly, the former husband did not cross-appeal, file an answer brief, or present any argument in this appeal. Accordingly, the only issue before  [*10]  this court is that presented by the former wife, i.e., whether the trial court erred by interpreting the phrase "room and board" in the parties' marital settlement agreement (the agreement) to mean only a dormitory and university meal plan. I agree with the majority's conclusion that the trial court erred by interpreting the phrase "room and board" to mean only a college dormitory room and a meal plan. Because that was the only question raised on appeal, the analysis should have stopped with that conclusion. However, the majority goes on to decide the case based on an interpretation of the agreement which was not argued by either party in the trial court or on appeal.

In the trial court, the former wife sought enforcement of paragraph 8 of the agreement, which requires the former husband "to contribute to the secondary education" of the parties' minor child (Cara), "up to but not to exceed fifty percent of the costs for tuition, books, and room and board . . . ." The majority opinion states the former husband "submits" paragraph 8 of the agreement "did not obligate him to pay fifty percent of Cara's expenses, but only 'up to' and not to exceed, fifty percent; and that the order  [*11]  should be affirmed because the amount provided by the trial court was consistent with his obligations under paragraph 8." This statement is without any factual basis. First, as noted, the former husband did not file an answer brief or present any argument in this appeal. Thus, on appeal, the former husband has submitted no argument nor asserted any basis for affirmance. Furthermore, in the trial court, the former husband did not contest his obligation to pay fifty percent, or his "fair share" of his daughter's college expenses, including room and board. His only defense to the former wife's claim for "room and board" was that the former wife's estimates were "too high" and he wanted receipts for room and board expenditures to ensure he did not pay more than his "fair share." He assumed his fifty percent, or "fair share," would be ascertained after deducting the amount of any scholarships or grants his daughter received and the parties would "split" the balance. In closing arguments, the former husband's attorney did state: "So, arguably, one percent would be in compliance with the contract." However, the former husband's attorney did not argue that position. Rather, he  [*12]  concluded: "When [the former husband] gets the accurate amounts, he will pay them."
 
Implicitly, affirmance is based upon the "tipsy coachman rule," which provides that a trial court's erroneous ruling may be affirmed if another basis supports affirmance. See Carraway v. Armour and Company, 156 So. 2d 494 (Fla. 1963). However, in those cases where application of the rule determines a case's outcome, the opposing party has always advanced the alternative basis for affirmance. See City of Coral Gables v. Baljet, 263 So. 2d 273 (Fla. 3d DCA 1972); State v. Stedman, 238 So. 2d 615 (Fla. 1970); C. W. Chase, Jr., v. Cowart, 102 So. 2d 147 (Fla. 1958); Dade County Sch. Bd v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999); Green v. First Am. Bank & Trust, 511 So. 2d 569 (Fla. 4th DCA 1987); E. A. Law & Co. v. Provende, Inc., 471 So. 2d 107 (Fla. 3d DCA 1985). Here, the parties will, for the first time, become acquainted with the argument which forms the basis and rationale of this court's decision upon receipt of the majority's opinion. Because the basis for affirmance  [*13]  was not an alternate theory presented by the former husband, I believe the majority misapplied the "tipsy coachman rule." Moreover, in my judgment, when an appellate court affirms a trial court's erroneous ruling by searching for a basis for affirmance not argued by the parties, as the majority does here, an unintended by-product is the impression that the court is a part of the adversarial process rather than a neutral judicial arbitrator. I realize that an appellate court must act sue sponte on issues involving jurisdiction, public policy, and illegality. However, this case involves the parties' private agreement that does not touch upon these exceptions. Furthermore, when a case is decided on an issue unnoticed to the parties, serious due process considerations are raised. Winddancer v. Stein, 765 So. 2d 747 (Fla. 1st DCA 2000); Hancock v. Tipton, 732 So. 2d 369 (Fla. 2nd DCA 1999). Thus, I cannot align with the majority.
 
Even assuming arguendo the majority's basis for affirmance was argued by the former husband, I would still reverse. The majority correctly states that, in contract interpretation, "the goal is to arrive at a reasonable interpretation  [*14]  of the text of the entire agreement to accomplish its stated meaning and purpose," and "in construing a contract, the court should place itself as nearly as possible in the position of the parties when the contract was executed and should consider the object sought to be accomplished by the agreement." Brown v. Travelers Ins. Co., 649 So. 2d 912 (Fla. 4th DCA 1995). Based on the testimony adduced at trial and the language of the agreement, it is clear that, by entering the agreement, the parties intended equally to share their daughter's college expenses. In my opinion, the majority's conclusion that the agreement does not obligate the former husband to pay one-half of these expenses is an unreasonable interpretation of the agreement, contrary to the parties' express intent, and accomplishes exactly what the majority says is impermissible: a remaking of the parties' agreement. See Bingeman, 551 So. 2d at 1232; see also Ballantyne, 666 So. 2d at 958-959.

In my judgment, the majority sua sponte injected an issue not raised by the parties, then impermissibly remade the parties' agreement on a basis not argued by the parties and, in  [*15]  so doing, denied the former wife due process. I would reverse the trial court for its ruling that the majority admits is erroneous, based on the sole ground raised on appeal. Accordingly, I dissent.


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2002 Fla. App. LEXIS 8232,*;821 So. 2d 336;
27 Fla. L. Weekly D 1358
SHANNON LOUISE AGNER, as personal representative of the estate of STEVEN MICHAEL AGNER, deceased, Appellant, v. APAC-FLORIDA, INC., a Delaware corporation and successor in interest COUCH CONSTRUCTION, L.L.C., a Delaware limited liability company and successor in interest to COUCH CONSTRUCTION, L.P., a Delaware limited partnership, AIM ENGINEERING & SURVEYING, INC., a Florida corporation, JOHN GERREN, individually, ANGELA CARPENTER WALLACE, and ANGELA SHURLEY WALLACE, Appellees.
CASE NO. 1D01-821
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
821 So. 2d 336;2002 Fla. App. LEXIS 8232;27 Fla. L. Weekly D 1358
  June 12, 2002, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied July 22, 2002. Released for Publication August 7, 2002. Review denied by Aim Eng'g & Surveying, Inc. v. Agner, 2003 Fla. LEXIS 532 (Fla., Mar. 27, 2003)
  PRIOR HISTORY:   An appeal from the Circuit Court for Madison County. Thomas J. Kennon, Jr., Judge.
DISPOSITION:   Reversed and remanded.
COUNSEL:   George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison and T. Bradley McRae of T. Bradley McRae, P.A., Lake City, for Appellant.
 
William D. Horgan and Patrick J. Farrell, Jr., of Fuller, Johnson & Farrell, P.A., Tallahassee, for APAC-Florida, Inc. and Michael D. West and George W. Hatch III of Huey, Guilday & Tucker, P.A., Tallahassee, for AIM Engineering & Surveying, Inc. and John Gerren, for Appellees.
JUDGES:   KAHN, J. WOLF and BENTON, JJ., CONCUR.
OPINIONBY:   KAHN
OPINION:  
 
KAHN, J.

In this case, plaintiff Shannon Louise Agner sued multiple defendants for the wrongful death of Michael Agner (decedent) resulting from an accident on Interstate 10 in Madison County, Florida. Mrs. Agner seeks review of a lower court order granting with prejudice a motion to dismiss filed by AIM Engineering & Surveying, Inc. (AIM). We conclude that the matter was not ripe for adjudication on a motion to dismiss, and therefore reverse the order of dismissal and remand  [*2]  for further proceedings.

"For purposes of ruling on the motion to dismiss, the trial court was obliged to treat as true all of the amended complaint's well-pleaded allegations, including those that incorporate attachments, and to look no further than the amended complaint and its attachments." City of Gainesville v. State, Dep't of Transp., 778 So. 2d 519, 522 (Fla. 1st DCA 2001). Accordingly, the facts before us are as set out in Agner's Second Amended Complaint. Our review is de novo. See id.

In July 1999, the Florida Department of Transportation (DOT) was engaged in a road improvement project on Interstate 10 in Madison County, Florida. Appellee APAC-Florida, Inc. (APAC), the successor in interest to Couch Construction LLC, was the general contractor for the road improvements. Appellee AIM, and its employee John Gerren, also an appellee, were professional engineers under contract with DOT to supervise the project. Decedent Stephen Agner was, at the time of his death, employed as a deputy sheriff by the Madison County Sheriff's Department. In her Second Amended Complaint, appellant alleged that AIM had the status of an independent contractor as to DOT, and  [*3]  was not an officer, employee, or agent of DOT. Alternatively, appellant alleged that, to the extent such an agency relationship might exist, AIM's negligent acts exceeded the scope of any relationship with DOT. Finally, appellant alleged that AIM's contractual obligation to render engineering services to DOT encompassed a duty of reasonable care to the decedent, which AIM breached, proximately causing the death of Stephen Agner.

AIM and APAC moved to dismiss the Second Amended Complaint. AIM raised five grounds for dismissal. Because the trial court dismissed the complaint in a one-sentence order without stating the grounds upon which it relied, this court is not informed of the reason for the dismissal. Nevertheless, we agree with appellant that, because APAC joined three of AIM's arguments for dismissal, but garnered only a dismissal without prejudice, the trial court did not rely on those three grounds. The trial court's dismissal, therefore, must have been based on either or both of the remaining grounds -- sovereign immunity and workers' compensation immunity. At the present stage of this case, neither ground mandated dismissal with prejudice.

As part and parcel of Florida's  [*4]  waiver of sovereign immunity, the Legislature has provided that no "agent of the state or any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function . . . ." § 768.28(9)(a), Fla. Stat. (1999). This immunity extends to certain private parties who are involved in contractual relationships with the State, provided that such parties are agents of the State. See Stoll v. Noel, 694 So. 2d 701 (Fla. 1997). Whether such contracted parties "are agents of the state turns on the degree of control retained or exercised by [a state agency]." Id. at 703. In Stoll, the leading Florida Supreme Court case on extension of sovereign immunity to private parties acting as state agents, the court acknowledged that "the right to control depends upon the terms of the employment contract." Id. (citing Nat'l Sur. Corp. v. Windham, 74 So. 2d. 549, 550 (Fla. 1954)). Nevertheless, in affirming a summary judgment in favor of the physicians/contractors  [*5]  in Stoll, the supreme court buttressed its conclusion by concessions made by the agency (HRS): (1) the HRS Manual created an agency relationship between the agency and the physician defendants; and (2) HRS acknowledged full financial responsibility for the physicians' actions. See id. The court relied not only upon the language of the contracts, but upon the agency's interpretation of the terms published in the manual and by which the physicians agreed to abide: "HRS's interpretation of its manual is entitled to judicial deference and great weight." Id. The supreme court upheld summary judgment in favor of the individual physicians. See 694 at 703-04.

In the present case, the contract between DOT and AIM was attached to the complaint and before the court. This contract, however, incorporated DOT's Construction Project Administration Manual, which was not before the trial court. Although the contract itself, referred to as a standard Consultant Agreement for Construction, Engineering and Inspection, contains many indicators that DOT exercised extensive control over certain functions performed by AIM, the trial court should have had the benefit of the Construction Project  [*6]  Administration Manual, as well as any other pertinent evidence concerning DOT's actual interpretation of AIM's status. This is consistent with the supreme court's analysis in Stoll. Because the trial court disposed of this case at the motion to dismiss stage, appellant has had no opportunity whatsoever to engage in discovery. *

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* The parol evidence rule is no impediment to plaintiff's discovery of DOT's actual interpretation of the terms of the contract:

The general rule is familiar that parol evidence is inadmissible to contradict or vary the terms of a valid written instrument, but this rule applies only to the parties to the contract or their privies . . . . The rule applies only to controversies between the parties themselves and those claiming under them, and between one of the parties and a stranger the rule does not apply.
 
The Florida Bar v. Frederick, 756 So. 2d 79, 84 (Fla. 2000) (quoting Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 So. 597, 599 (Fla. 1895)).
 

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In affording appellant the opportunity to investigate further in this matter, we note that the dismissal in Stoll took place at the summary judgment stage, and not the motion to dismiss stage. Cf. Nazworth v. Swire Fla., Inc., 486 So. 2d 637, 638 (Fla. 1st DCA 1986) (granting summary judgment on the question of agency, and observing, "The standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent."). In two cases decided after Stoll, the Fourth District has reversed summary judgments originally granted under section 768.28(9)(a), even though the parties claiming immunity were subject to contracts which the court acknowledged attempted to create an agency status. See Robinson v. Linzer, 758 So. 2d 1163 (Fla. 4th DCA 2000); Theodore v. Graham, 733 So. 2d 538 (Fla. 4th DCA 1999). These cases suggest that even where a contract exists, the court must look carefully to the degree of control exercised by the State. See Theodore, 733 So. 2d at 539-40. Only a "true agent" of the government may "share in the full panorama of the government's  [*8]  immunity." Dorse v. Armstrong World Inds. Inc., 513 So. 2d 1265, 1268 (Fla. 1987). The plaintiff's complaint should not have been dismissed with prejudice on a theory of sovereign immunity.

Also, in support of dismissal, AIM claims entitlement to workers' compensation immunity under section 440.09(6), Florida Statutes (1999). Section 440.09(6) provides:

Except as provided in this chapter, a construction design professional who is retained to perform professional services on a construction project, or an employee of a construction design professional in the performance of professional services on the site of the construction project, is not liable for any injuries resulting from the employer's failure to comply with safety standards on the construction project for which compensation is recoverable under this chapter, unless responsibility for safety practices is specifically assumed by contracts. The immunity provided by this subsection to a construction design professional does not apply to the negligent preparation of design plans or specifications.
 
AIM's contract with DOT placed it within the purview of this statute. See, e.  [*9]  g., Wallace v. Post, Buckley, Schuh, & Jernigan, Inc., 579 So. 2d 397, 397 (Fla. 3d DCA 1991) ("[Defendant's] contractual obligations under its Standard Consulting Agreement with the Florida Department of Transportation qualify for the immunity of sub section 440.09(5), Florida Statutes (1989) [now section 440.09(6), Florida Statutes (1999)]."). Nevertheless, the facts as alleged in the Second Amended Complaint do not fit the requisite statutory scenario. In her complaint, plaintiff avers, "At all times material to this action [decedent] was employed as a Deputy Sheriff with the Madison County Sheriff's Department . . . ." We are bound to accept this allegation as true. See City of Gainesville, 778 So. 2d at 522. AIM may or may not be able to show that APAC subcontracted with the decedent's employer; however, that allegation is not present in the complaint or attachments. At this juncture, then, the complaint should not have been dismissed based upon workers' compensation immunity.

REVERSED and REMANDED for further proceedings.
 
WOLF and BENTON,  [*10]  JJ., CONCUR.


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2002 Fla. App. LEXIS 7390,*;835 So. 2d 1150;
27 Fla. L. Weekly D 1237
JULIAN DIMASE and GAETANO DIMASE, Appellants, vs. AQUAMAR 176, INC., and CHICAGO TITLE INSURANCE COMPANY, Appellees.
CASE NO. 3D01-915
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
835 So. 2d 1150;2002 Fla. App. LEXIS 7390;27 Fla. L. Weekly D 1237
    May 29, 2002, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  On rehearing, Substituted opinion: Dimase v. Aquamar 176, Inc., 2003 Fla. App. LEXIS 936 (Fla. Dist. Ct. App. 3d Dist. Jan. 29, 2003). Released for Publication January 29, 2003.
  PRIOR HISTORY:   An Appeal from the Circuit Court for Dade County, Thomas S. Wilson, Jr., Judge. LOWER TRIBUNAL NO. 98-23169.
DISPOSITION:   Affirmed.
COUNSEL:   Armstrong & Mejer, P.A., and Alvaro L. Mejer, for appellants.
 
Frankel & Lieberman, P.A., and Robert P. Frankel, for appellees.
JUDGES:   Before JORGENSON, GREEN, and RAMIREZ, JJ. JORGENSON and GREEN, JJ., concur.
OPINION:   PER CURIAM.

Prospective buyers appeal from an order of final summary judgment in an action brought against the sellers to recover deposits for the purchase of two condominium units. We affirm.

Julian and Gaetano DiMase signed purchase agreements for two condominium units which were under construction. The units were both located at the same complex. The agreements specified that floor coverings were not included with the sale of the units. The buyers also signed proposed addenda which specified that the seller would install at its own cost marble flooring throughout the units, "marble design and color to be specified by buyer." The addenda were not signed by the seller/developer. Each buyer tendered ten percent deposits. Chicago Title is the deposit escrow holder.  [*2]  

After signing the documents and tendering the deposits on May 1, 1998, the buyers returned to their homes in Venezuela. Although the seller approved the purchase price, it rejected the addenda and substituted the following: "Seller to provide marble floors of the same quality and value as shown in sales model unit # 1208." When the seller's proposed addenda were telefaxed to Venezuela, the buyers did not sign them. Instead, by letter dated July 17, the buyers rejected the seller's proposed addenda and declined to pay the next deposits due. When the seller refused to return the deposits, the buyers sued to recover the funds held in escrow. The seller filed an answer, affirmative defense and counterclaim for a declaratory judgment to have the buyers declared in default. Following entry of summary judgment for the seller, the buyers appeal.

We find no merit in the buyers' argument that the Purchase Agreements were actually offers, and that when the parties could not agree on the flooring, the buyers each rejected those offers. "In construing contracts, the intention of the parties governs, and such intention will be determined from the language used when it is unambiguous." Robbinson v. Central Properties, Inc., 468 So. 2d 986, 988 (Fla. 1985).  [*3]  

The terms of the Purchase Agreement clearly and unambiguously express the parties' intent to be bound by its terms. Each Purchase Agreement states that "buyer agrees to buy and seller agrees to sell..." and that "this Agreement is the entire contract for sale and purchase of the units and once it is signed, it can only be amended by a written instrument signed by the party against whom enforcement is sought which specifically states that this is amending this Agreement." (emphasis added). It is undisputed that both parties signed the Purchase Agreement. Further evidencing the parties' intent to enter into a binding contract upon execution is the severability clause of the agreement. The severability clause provides, in pertinent part, that any parts which are unenforceable will be modified or nullified "in order that the mutual paramount goal (that this Agreement is to be enforced to the maximum extent possible strictly in accordance with its terms) can be achieved." In addition, the Purchase Agreement provides a specific period, fifteen days after its execution, during which the buyers could have avoided the Purchase Agreement by providing the seller with written notice. These  [*4]  are the terms to which the buyers agreed, as evidenced by their signatures on the Purchase Agreements. See Acceleration Nat'l Serv. Corp. v. Brickell Fin. Servs. Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 3d DCA 1989) (holding that the best evidence of the parties' intent is the document sought to be enforced); Robbinson, 468 So. 2d at 988. The Purchase Agreement was objectively a final expression of the buyers' intent to buy, and the seller's intent to sell, the condominium unit. See Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957).
In Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985), the Florida Supreme Court wrote:"We have consistently held that an objective test is used to determine whether a contract is enforceable. ... 'The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs--not on the parties having meant the same thing but on their having said the same thing.' ... In addition, parties to a contract do not have to deal with every contingency in order to have an enforceable contract.(quoting  [*5]  Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974) and Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957)).
Accordingly, we hold that the Purchase Agreement was a valid contract for the sale and purchase of a condominium.

Likewise, we reject the buyers' argument that no contract was formed because there was no meeting of the minds.
A "meeting of the minds" defense succeeds only where the parties have failed to agree on an essential term of the contract:
While a 'meeting of the minds' may not be necessary as to every term for a contract to be formed, mutual assent is certainly necessary as to an essential term such as the financing terms of this real estate transaction. ... Because an essential term of the contract which cannot be supplied by implication was not assented to, no contract was formed and none of its provisions became binding.David v. Richman, 568 So. 2d 922, 924 (Fla. 1990) (citations omitted); see also Bowen v. Larry Gross Const., Inc., 781 So. 2d 464, 466 (Fla. 5th DCA 2001) ("Even though the details are not definitely fixed, an agreement may  [*6]  be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto."); see also Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985).

The buyers have not even attempted to explain how marble flooring was an "essential term," without which the contract could never be formed. See, e.g., Fox v. Sails at Laguna Club Dev. Corp., 403 So. 2d 456 (Fla. 3d DCA 1981). The definition of "essential term" will "vary widely according to the nature and complexity of each transaction and will be evaluated on a case-by-case basis." Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057, 1060 (Fla. 3d DCA 1979); see also Giovo v. McDonald, 791 So. 2d 38, 39 (Fla. 2d DCA 2001) ("Certainly, what is an 'essential term' of a contract differs according to the circumstances."). Even if marble flooring could be deemed an essential term, it was, in fact, referenced in the Purchase Agreement,  [*7]  as flooring was specifically excluded. See Giovo, 791 So. 2d at 39 (holding that essential terms include those specified in the offer ... [and] an acceptance is effective to create a contract only if it is absolute and unconditional, and identical with the terms of the offer"). The buyers accepted the terms of the offer, which were memorialized in the clear and unambiguous Purchase Agreement. The sellers never changed, altered, modified, or deviated from the terms of the offer, which specifically provided that flooring is not included absent some form of addendum signed by both parties. See Press v. Jordan, 670 So. 2d 1016 (Fla. 3d DCA 1996) (holding that no meeting of the minds, and hence no contract, was formed when condominium sellers unilaterally modified contract by altering interest rate term and purchasers did not consent to modification). The parties' failure to agree on the flooring addenda does not affect the enforceability of the Purchase Agreement. See Mercedes Homes, Inc. v. Osborne, 687 So. 2d 840 (Fla. 2d DCA 1996) (holding that all the terms of an original contract that are not modified, substituted, or amended remain  [*8]  in full force and effect).

Because the buyers failed to void the contract within the 15-day contractual period, n1 and the Purchase Agreement provides for liquidated damages in the amount of the deposit, the buyers are not entitled to recovery of the deposits. Accordingly, the judgment is

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n1 The following language was included in the "Receipt for Condominium Documents," which the buyers executed:

THE PURCHASE AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF EXECUTION OF THE PURCHASE AGREEMENT BY THE BUYER AND RECEIPT BY THE BUYER OF ALL OF THE DOCUMENTS TO BE DELIVERED TO HIM BY THE DEVELOPER.The Purchase Agreement contained the same language.
 

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AFFIRMED.
 
JORGENSON and GREEN, JJ., concur.
DISSENTBY:   RAMIREZ
 DISSENT:   RAMIREZ, J. (dissenting)

I respectfully dissent. The majority opinion will unnecessarily disturb longstanding principles in contract law, and will create uncertainty and confusion in the drafting and execution  [*9]  of real estate agreements.

It is important to bear in mind that this appeal comes to us from an order granting summary judgment. Viewing the evidence in the light most favorable to the appellants, Julian and Gaetano DiMase, the inescapable conclusion is that summary judgment was improvidently granted. Even if we only view the undisputed facts, summary judgment should be reversed.

I. The Undisputed Facts

On May 1, 1998, the DiMases each signed four separate documents, all prepared by the seller, Aquamar 176, Inc., through its sales executive, Rafael Rodriguez. These documents consisted of (1) a "Purchase Agreement," (2) an "Amendment to Purchase Agreement,"(3) an "Addendum," and (4) a Receipt for Condominium Documents. The four documents were executed only by the purchasers, the DiMases, who departed for Venezuela after signing.

The sixteen-page Purchase Agreements specified the purchase price for each unit as $ 634,000 and $ 628,000, respectively. Paragraph 15, entitled "Certain Items and Materials," provided, in pertinent part, as follows:

Buyer understands and agrees that certain items such as the following ... are not included with the sale of the Unit: ... carpets  [*10]  or other floor coverings ... Items such as these will not be included in the Unit unless specifically provided for in a Rider or Schedule to this Agreement signed by both Buyer and Seller.Additionally, Paragraph 38 contained an integration clause.

The second document signed by the buyers was the Addendum, which provided in pertinent part as follows:

1. This Addendum shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in, the Agreement.

2. Seller shall install, at his cost, marble flooring in the kitchen, living room, dining room, washer and dryer room, balconies, baseboards and bathroom walls. Marble, design and color to be specified by buyer.

The third document was the Amendment to Purchase Agreement, under which the DiMases offered to pay an additional $ 50,000 for one unit and an additional $ 30,000 for the other unit for the exclusive use of two pool cabanas.

Finally, the Receipt for Condominium Documents provided that the Purchase Agreement was "voidable by the buyer by delivering written notice of the buyer's intention to cancel within 15 days after the date of execution of the purchase agreement  [*11]  by the buyer ..."

After the DiMases left, Jennifer Cruickshank, Aquamar's closing coordinator, reviewed the package of DiMase documents. Cruickshank was concerned that the addenda were too open-ended and that specification of the marble requested by the DiMases would be necessary. On May 5, she telephoned Aquamar's president, who was traveling in Russia. Although he approved the sale prices, Aquamar's president considered the addenda "ridiculous" and "insulting". He sent Cruickshank a memorandum, directing:

Before these contracts are signed I need to know what is being credited by the broker. Must include all costs of marble and $ 10,000 reduced from price of Pool Cabana. Addendum must be adjusted not to include marble on the walls of the bathrooms.
At this point, Aquamar prepared new addenda whereby the seller would provide marble floors of the same quality and value as shown in the sales model. The DiMases never executed the new addenda. On July 17, 1998, they wrote to Aquamar, "rescinding their offer to purchase." Rodriguez attempted to revive the deal by writing to Julian DiMase and asking him what type of flooring he wished, but no agreement was reached.

II. The  [*12]  offer

It is clear from the conduct of the parties that on May 1, 1998, the DiMases made an offer to purchase two condominiums. Although the offer was made in the form of separate documents, all must be viewed together. Southfork Investments Group, Inc. v. Williams, 706 So. 2d 75, 80 (Fla. 2d DCA 1998) ("documents executed as part of a single transaction and concerning the same subject matter must be construed together."). In OBS Co., Inc. v. Pace Constr. Corp., 558 So. 2d 404, 406 (Fla. 1990), the supreme court was confronted with a similar situation in which multiple documents were involved in the litigation. The supreme court stated that "it is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing." Id. at 406 (citing J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So. 2d 484 (Fla. 1957); United States Rubber Prods. v. Clark, 145 Fla. 631, 200 So. 385, 388 (1941) (stating that "where a writing expressly refers to and  [*13]  sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing."); McGhee Interests, Inc. v. Alexander Nat'l Bank, 102 Fla. 140, 135 So. 545 (1931). The fact that this line of cases dates back over seventy years demonstrates that this principle of law is very well established.

Aquamar could no more select which documents to sign than it could change the purchase price of the DiMases' offers.
See Corbin on Contracts § 2.10, at 170-71 (Joseph M. Perillo ed., rev. ed. 1993)("In the process of making a contract, either orally or in writing, the parties may express their assent piecemeal, agreeing upon individual terms as the negotiation proceeds. These expressions are merely tentative and are inoperative in themselves; there is no contract until the parties close their negotiation and express assent to all the terms of the transaction together.") (emphasis added). n2

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n2 This section also states:

A document is a "written contract" if it has been assented to by the necessary parties as expressing fully and accurately the terms upon which they have agreed. Such a document was described by Wigmore as an "integration" of the agreement. The question whether they have so agreed is a question of fact, one that the document itself cannot answer;
extrinsic evidence of their assent to it as such is always necessary, even though the document bears the signatures of the parties.
The existence of such a signed document may indeed be evidential of assent to it as an "integration," its weight as such evidence depending upon the character and terms of the writing that it contains and upon its physical appearance. But it is never conclusive. The "parol evidence rule," cited in thousands of opinions, has been stated in various forms, with many "exceptions.". . . It excludes no evidence and has no legal operation until the fact of assent to the document as an accurate "integration," has been established.

Id. at 175.
 

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Furthermore, the rule in contract law is that any ambiguity should be construed against the party that drafted the contract. See King v. Guaranty Nat'l Ins. Co., 440 So. 2d 607, 608 n.1 (Fla. 3d DCA 1983). It is undisputed that all the documents were drafted by Aquamar.


At the point that the buyers each signed four documents and left for Venezuela, the documents can only be viewed as an offer to purchase. The majority rejects the argument that these documents constituted an offer to purchase, but does not explain, in terms of contract law, what the documents represent. The documents certainly did not constitute contracts because the seller's signature was absent. As is well established, basic contract formation requires offer, acceptance and consideration. The inescapable conclusion is that the buyers signed an offer. The fact that the documents contained language which clearly and unambiguously expressed the parties' intent, as the majority's opinion suggests, does not change the nature of the offer into a contract until the seller accepts the offer, which occurred days later. If Aquamar had not executed the "Purchase Agreement" at all, there would have been no  [*15]  contract. Likewise, if Aquamar had changed the purchase price or any other essential term, the majority would agree that Aquamar was making a counteroffer and there would have been no contract until the DiMases accepted the counteroffer by initialing the change.

"An acceptance is effective to create a contract only if it is absolute and unconditional, and identical with the terms of the offer." Giovo v. McDonald, 791 So. 2d 38, 40 (Fla. 2d DCA 2001). Otherwise stated, "an acceptance must contain an assent to the same matters contained in the offer." Id. While the majority cites Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985), for the proposition that the parties to a contract do not have to deal with every contingency in order to have an enforceable contract, it is axiomatic that the type and quality of flooring would be a foreseeable contingency in any newly-built condominium. In this case, the contingency was a deal-killer.

III. No "Meeting of the Minds"

"It is well-established that a meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract." Greater New York Corp. v. Cenvill Miami Beach Corp., 620 So. 2d 1068, 1070 (Fla. 3d DCA 1993).  [*16]  "To result in a contract, an acceptance of an offer must be absolute and unconditional, identical with the terms of the offer and in the mode, at the place and within the time expressly or impliedly required by the offer." Ribich v. Evergreen Sales & Service, Inc., 784 So. 2d 1201, 1202 (Fla. 2d DCA 2001) (citing Sullivan v. Economic Research Props., 455 So. 2d 630, 631 (Fla. 5th DCA 1984)) (emphasis added). n3 A counteroffer operates as a rejection of a preceding offer. See Padron v. Plantada, 632 So. 2d 113 (Fla. 3d DCA 1994).
See also Cheverie v. Geisser, 783 So. 2d 1115, 1119 (Fla. 4th DCA 2001) ("Generally, the acceptance of an offer which results in a contract must be absolute and unconditional, identical with the terms of the offer, and in the mode, at the place, and within the time expressly or impliedly stated within the offer.
Thus, '[an] acceptance must contain an assent to the same matters contained in the offer.'" (citation omitted)).

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n3 See also Williston on Contracts § 6:11, at 85-88 (Richard A. Lord ed., 4th ed. 1990) (stating that "because the offeror is entitled to receive what it is he has bargained for, if any provision is added to which the offeror did not assent, the consequence is not merely that the addition is not binding and that no contract is formed, but that the offer is rejected, and that the offeree's power of acceptance thereafter is terminated.").
 

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In Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057 (Fla. 3d DCA 1979), we stated that to be an enforceable real estate contract, the statute of frauds requires that the contract be embodied in a written memorandum signed by the party against whom enforcement is sought and that the written memorandum disclose all of the essential terms of the sale, and these terms may not be explained by resort to parol evidence.

Socarras v. Claughton Hotels, Inc., 374 So. 2d 1057 (Fla. 3d DCA 1979),
Id. at 1059. We then refused to enforce an unsigned RAMCO form, stating that "in order for an unsigned writing to be used to supply the essential elements of an enforceable contract, there must be some reference to that unsigned writing in the signed writing."

Id. But in our case, the DiMases are not seeking to enforce the unsigned Addendum. They are simply attempting to show that there was no meeting of the minds and, therefore, no enforceable contract by either party. See also Drost v. Hill, 639 So. 2d 105, 106 (Fla. 3d DCA 1994) (Where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.).

Almost a century ago, the Florida Supreme  [*18]  Court explained this principle as mutuality of assent in Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (1910):

In order to create a contract, it is essential that there should be a reciprocal assent to a certain and definite proposition. So long as any essential matters are left open for further consideration, the contract is not complete, and the minds of the parties must assent to the same thing in the same sense.
1 Story on Contracts, § 490; Etheredge v. Barkley, 25 Fla. 814, 6 South. 861 [(1889)].

In the making of a valid contract, the parties must not only be capable of an intelligent assent, but they must actually give their assent; and the assent must be precisely the same thing, and at the same instant of time. Consequently, if one assents to a certain thing and the other assents to it only with modifications, or if one assents to it at one time and the other at a different time, no agreement or contract arises therefrom. From this it is clear that an offer must be accepted before it can become a binding promise. While the assent of both parties must be at the same instant of time, it is not necessary that the  [*19]  communication shall be simultaneous.

The acceptance of an offer, to result in a contract, must be: (1) Absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly required by the offer. If a person offers to do a definite thing, and the person to whom the offer is made accepts conditionally, or introduces a new term into the acceptance, his answer is not an acceptance; but it is either a mere expression of willingness to that, or it is in effect a counter offer, which must be accepted or assented to before a contract can result.
 
Id. at 93-94 (emphasis added). See also State v. Family Bank of Hallandale, 623 So. 2d 474, 479 (Fla. 1993) (mutual assent is an absolute condition precedent to contractual formation); David v. Richman, 528 So. 2d 25, 27 (Fla. 3d DCA 1988).

The majority rejects the DiMases' "meeting of the minds" argument because they have not explained how marble flooring was an "essential term." It strains logic that the DiMases would be willing to pay $ 1,262,000 for two luxury condominiums, only to live on cement floors. As the majority  [*20]  recognizes, what is an "essential term" must be evaluated on a case-by-case basis. See Opinion, p.5. It differs according to the circumstances. Id. Again, we must remember that the case is before us because the trial court entered summary judgment. It strains logic to determine that, as a matter of law, the flooring was not an essential term. Perhaps the majority feels that the buyers are using the marble floor argument as an excuse to rescind the contract. With all due respect, that may be a good argument to present to the jury, but not on summary judgment.

On the contrary, it seems clear from the conduct of the parties that the type and quality of the flooring was an important term in the negotiations. Aquamar's representatives gave the DiMases the standard sixteen-page "Purchase Agreement" in February, 1998, when they originally expressed an interest in purchasing the units. They reviewed the form with their attorney. The DiMases, however, were not interested in purchasing these luxury apartments with no flooring. They wanted marble floors and expressed their desire objectively by having the salesperson prepare the Addenda.

Aquamar also behaved as if this was an essential  [*21]  term in the negotiations. Aquamar's closing coordinator was immediately concerned about the marble flooring and the president reacted strongly to the flooring specifications. The majority does not discuss the cost of marble flooring, but it evidently was sufficient to cause the closing coordinator to telephone the president of Aquamar in Russia to discuss it.

The majority then posits that, even if marble flooring was an essential term of the contract, the term was specifically excluded from the Purchase Agreement. It seems to me, however, that this is the equivalent of someone standing in the shade and concluding it is a cloudy day. We cannot simply look only at the Purchase Agreement. If the clause regarding the marble floors had been included within the "Purchase Agreement," Aquamar could not have stricken the clause and argued that there was an enforceable contract. It was for the convenience of Aquamar, who was the author of all these documents, that this important term in the DiMases' offer was contained in a separate document. It was clearly envisioned within the "Purchase Agreement" itself that any flooring would be specified in a separate document. n4

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n4 See Paragraph 15 of the "Purchase Agreement," stating that "items such as [floor coverings] will not be included in the Unit unless specifically provided for in a Rider or Schedule to this Agreement signed by both Buyer and Seller."
 

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The majority states that the "buyers accepted the terms of the offer ..." Opinion at p. 6. What offer? It was the buyers who made the offer. The majority then states that the "sellers never changed, altered, modified, or deviated from the terms of the offer (sic)..." citing Press v. Jordan, 670 So. 2d 1016 (Fla. 3d DCA 1996). That case, however, fully supports the DiMases' position. In Press v. Jordan, the "sellers made several changes to the contract including changing the financing section ... The buyers did not consent to this change ..." Id. at 1017. We affirmed summary judgment in favor of the buyers! n5

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n5 The majority also cites Mercedes Homes, Inc. v. Osborne, 687 So. 2d 840 (Fla. 2d DCA 1996), but that case involved the interpretation of two different contracts which both sides agreed were enforceable, hardly our situation.
 

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To affirm, the majority insists on looking only at the language of the Purchase Agreement which specifically excludes  [*23]  marble flooring. Even the seller, however, was willing to look beyond the Purchase Agreement when it was advantageous to do so. Aquamar had no problem looking at and agreeing to the Amendments which increased the purchase price by $ 50,000 and $ 30,000, respectively. By its own conduct, Aquamar has conceded that other documents, besides the Purchase Agreement, were part of the DiMases' offers. Furthermore, if we look only at the "Purchase Agreement," Aquamar's sixteen-page contract contemplated that a "Rider or Schedule" would b
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2002 Fla. App. LEXIS 7394,*;816 So. 2d 1225;
27 Fla. L. Weekly D 1243
COLLECTIONS, USA, INC., Appellant, vs. THE CITY OF HOMESTEAD, Appellee.
CASE NO. 3D01-1680
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
816 So. 2d 1225;2002 Fla. App. LEXIS 7394;27 Fla. L. Weekly D 1243
  May 29, 2002, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication June 14, 2002. Related proceeding at, Sub nomine at State v. Nunez, 2004 Fla. App. LEXIS 12120 (Fla. Dist. Ct. App. 3d Dist., Aug. 18, 2004)
  PRIOR HISTORY:   An Appeal from the Circuit Court for Miami-Dade County, Barbara Levenson, Judge. LOWER TRIBUNAL NO. 99-4892.
DISPOSITION:   Reversed and remanded.
COUNSEL:   Arnaldo Velez, for appellant.
 
Weiss Serota Helfman Pastoriza & Guedes and Christopher F. Kurtz and Carmen I. Tugender, for appellee.
JUDGES:   Before FLETCHER and SORONDO, JJ., and NESBITT, Senior Judge.
OPINIONBY:   SORONDO
OPINION:  
 
SORONDO, J.

Collections USA, Inc. (Collections) appeals the lower court's entry of final summary judgment in favor of the City of Homestead (the City). We reverse.

On August 11, 1992, Collections, a company that specializes in the collection of delinquent accounts receivable, entered into a written contract with the City, in which the City agreed to sell to Collections code enforcement and minimum housing liens for $ 70,000. The City assigned and transferred to Collections all the code enforcement and minimum housing liens, correspondence, and back up documentation described in the contract in September 1992 . On November 24, 1993, Robert C. Eber, one of Collections' attorneys, wrote to Michael Watkins, the City attorney, to advise him that none of the liens  [*2]  were valid, and to request the City's assistance to protect Collections' interest. On December 17, 1993, Lawrence Roberts, another attorney representing Collections, wrote to Watkins about the problems Collections was encountering with the liens, and requested the City's assistance in accordance with the terms of the contract.

Watkins responded to Roberts in a letter dated December 23, 1993, in which he advised that he was requesting that the Code Enforcement Department provide Collections with all necessary aid pursuant to the contract. Roberts replied to Watkins in a letter dated January 6, 1994, in which he enclosed a copy of Eber's letter of November 24, 1993, as a way of outlining the problems in more detail.

On January 10, 1994, Watkins responded to Roberts' letter of January 6, 1994, as follows:

Dear Mr. Roberts:

I have received your letter dated January 6, 1994, reference [sic] City of Homestead assignment of Code Enforcement and Minimum Housing liens to Collections U.S.A. I do not know at this time what further actions you wish the City to take relative [sic] that transaction. Collections U.S.A. was afforded the opportunity to review the files concerning the liens  [*3]  prior to the assignment of same and the City only assigned to Collections U.S.A. such liens as it had. The question of recording a certified copy of the Code Enforcement Board never arose at that time and I am not aware of what steps you wish the City of Homestead to take in this matter.

We will assist Collections U.S.A. as set forth in the agreement and the assignment, but the City is not now in the position to take any independent action on this matter.
 
 
(Emphasis added). The parties acknowledge that the City continued to assist Collections in collecting the liens until sometime in 1995, after which time the City refused to provide any further assistance.
 
On February 25, 1999, Collections filed suit against the City for breach of contract. It alleged, inter alia, that the City had failed to deliver bona fide liens, to timely provide supporting and background documentation necessary to prosecute the collection of the liens, to perfect title in the liens, to execute all documents necessary for Collections to foreclose and collect the moneys owed under the lien, and to remit to Collections money that the City collected from property owners. n1

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n1 In connection with this allegation, Collections claims that in 1998, it discovered that the City had collected on liens or lien rights previously sold to Collections. The City asserts, however, that Collections was aware of this since 1992 .
 

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The City moved for summary judgment on the basis that suit was barred by the statute of limitations, section 95.11(2)(b), Florida Statutes ( 2001 ). n2 The lower court granted the City's motion and entered final summary judgment in its favor, finding that,

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n2 Under section 95.11(2)(b), a "legal or equitable action on a contract, obligation or liability founded on a written instrument" shall be commenced within five years. Section 95.031, Florida Statutes ( 2001 ), in turn, provides that the time within which an action shall be commenced under any statute of limitations runs from the time the cause of action accrues. A cause of action accrues when the last element constituting the cause of action occurs. § 95.031(1), Fla. Stat.
In a claim for breach of contract, the elements of which are the existence of a contract, a breach thereof and damages, AIB Mortgage Co. v. Sweeney, 687 So. 2d 68, 69 (Fla. 3d DCA 1997 ), the action accrues at the time the contract is breached. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996 ).
 

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 [*5]  
 
On November 24, 1993 [Collections] was on notice that the liens were allegedly not valid. This is the date [Collections'] cause of action may have accrued. However, in the light most favorable to [Collections], this action should have been filed no later than January 10, 1999. This is based upon record evidence that on January 10, 1994 the City advised [Collections] that it would take no independent action to assist [Collections] in recording or perfecting the liens.

This appeal ensued.

Summary judgment is proper where there are no genuine issues of material fact and where the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000 ). We review the matter de novo and in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000 ). If the slightest doubt exists, summary judgment must be reversed. Sierra, 767 So. 2d at 525; see also Cox v. CSX Intermodal, Inc., 732 So. 2d 1092,1095 (Fla. 1st DCA 1999 ) ("If the record reflects even the possibility of a material issue of fact,  [*6]  or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied."). In this case, there is a genuine issue of material fact as to when the breach of contract occurred. The trial court found that the City clearly breached the contract on January 10, 1994, when the City attorney advised Collections that "the City is not now in the position to take any independent action on this matter," namely, in recording or perfecting the liens. That statement, however, was prefaced by the City advising Collections that it would provide its assistance as set forth in the agreement and the assignment. n3 Indeed, the City continued to assist Collections until 1995, which is what Collections claims it sought all along in accordance with the terms of the contract - cooperation, not independent action. Viewed in the light most favorable to the non-moving party, it is not clear whether the City attorney's letter of January 10, 1994 was a repudiation of the contract or a confirmation that the City would perform under the contract. n4

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n3 Collections argues that provisions of the contract reveal that at the time the contract was drafted, the parties contemplated further acts necessary to perfect at least some of the liens or lien rights sold.  [*7]  


n4 Nor is it clear from the record whether Eber's letter of November 24, 1993 was a determination by Collections that the City was in breach of the contract; or whether Collections was simply seeking the City's assistance pursuant to the terms of the contract to perfect the subject liens and lien rights.
 

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Accordingly, we conclude that a genuine issue of material fact exists as to when the five-year statute of limitations began to run on Collections' claim against the City for breach of contract. We reverse the final summary judgment and remand for trial.

Reversed and remanded.


Tolled by partial payments on a written instrument

   

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2002 Fla. App. LEXIS 3604,*;810 So. 2d 1061;
27 Fla. L. Weekly D 650
ROBERT S. CUILLO, Appellant, v. JERRY McCOY, individually, and as Personal Representative of the ESTATE OF E. DON McCOY, Appellee.
CASE NOS. 4D00-3031 and 4D01-448
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
810 So. 2d 1061;2002 Fla. App. LEXIS 3604;27 Fla. L. Weekly D 650
 March 20, 2002, Opinion Filed
SUBSEQUENT HISTORY:   Released for Publication April 5, 2002.
  PRIOR HISTORY:    [*1]  Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Kathleen J. Kroll and Arthur G. Wroble, Judges; L.T. Case No. CL 99-2138 AG.
DISPOSITION:   Affirmed.
COUNSEL:   Roger Slade of Pathman Lewis, LLP, Miami, for appellant.
 
Joseph G. Galardi and H. Michael Easley of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee.
JUDGES:   HAZOURI, J. STEVENSON and GROSS, JJ., concur.
OPINIONBY:   HAZOURI
 OPINION:   HAZOURI, J.

Robert Cuillo appeals from a final summary judgment entered against him in favor of Jerry McCoy, individually and as personal representative of the Estate of E. Don McCoy. The McCoys have cross-appealed the award of prejudgment interest.

On September 5, 1985, Toyota of Palm Beach, Inc., purchased McCoy Motors from appellees and the parties executed a Consulting and Covenant Not To Compete Agreement ("Original Agreement") under which each appellee would be paid $ 80,000 per year for ten years. The Original Agreement provided that the appellees would work for a limited time per year as consultants for Toyota of Palm Beach. It also provided that appellees would not engage in  [*2]  the business of new motor vehicle sales or services within Palm Beach County for ten years. The Original Agreement further provided:

4. COMPENSATION: As compensation for services to be rendered by Consultant [appellees] hereunder and Consultant's agreement not to compete with TOYOTA OF PALM BEACH, TOYOTA OF PALM BEACH or its assigns agrees to pay each consultant, or in the event of his death, his estate the sum of Eighty Thousand Dollars ($ 80,000.00) annually for ten (10) years payable beginning one (1) year from the Closing Date and annually thereafter.
 
The payments were due on September 5 of each year. Paragraph 7 provided:

7. ASSIGNMENT: Consultant [appellees] shall not have the right to assign, encumber or dispose of the right to receive payments hereunder, which payments and the right to receive same are expressly declared to be non-transferable and non-assignable, being based upon the personal services and agreement of Consultant and any attempt of assignment or transfer shall be null and void and without binding effect upon TOYOTA OF PALM BEACH. The assignment of this Agreement by TOYOTA OF PALM BEACH shall not relieve it of its obligations hereunder.  [*3]  

On July 21, 1986, Toyota of Palm Beach sold the dealership to Cuillo and as part of the sale, Cuillo executed the Assignment and Assumption Agreement ("Cuillo Agreement") which provides:

1. TOYOTA OF PALM BEACH, INC., now known as REGENT MOTOR CO., INC. ("Assignor") does hereby transfer and assign to ROBERT S. CUILLO and his assigns ("Assignee") all of its interest in and to that certain Consulting and Non-Competition Agreement (the "Agreement") between Assignor and Jerry McCoy and E. Don McCoy dated September 5, 1985.

2. Assignee does hereby assume all of the obligations of Assignor under the Agreement and agrees to pay all amounts required thereunder when due. Assignee further agrees to indemnify and hold harmless Assignor and all other persons, firms, corporations and associations having liability under the Agreement, including the payment of attorney fees, costs and expenses resulting from a default by Assignee.

3. This Assignment and Assumption Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Cuillo made full payments to appellees under that assignment until December 11, 1987. Thereafter, Cuillo sold  [*4]  the dealership to William A. Chamberlain and executed an "Assignment and Assumption Agreement" with him on January 7, 1988. That document provided:

1. TOYOTA OF PALM BEACH, INC. ("Assignor") does hereby transfer and assign to WILLIAM A. CHAMBERLAIN and his assigns ("Assignee") all of its interest in and to that certain Consulting and Non-Competition Agreement (the "Agreement") between Assignor and Jerry McCoy and E. Don McCoy dated September 5, 1985, and a copy of which is attached hereto as Exhibit "A", having a balance due of $ 1,280,000.00.

2. Assignee does hereby assume all of the obligations of Assignor under the Agreement and agrees to pay all amounts required thereunder when due. Assignee further agrees to indemnify and hold harmless Assignor and all other persons, firms, corporations and associations having liability under the Agreement, including the payment of attorney fees, costs and expenses resulting from a default by Assignee.

3. This Assignment and Assumption Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Chamberlain made full and timely payments to appellees from 1988 through 1990. Beginning  [*5]  in 1991, Chamberlain was having financial difficulties and made the following total payments: (1) 1991 - $ 60,000; (2) 1992 - $ 70,000; (3) 1993 - $ 190,000; (4) 1994 - $ 80,000; (5) 1995 - $ 120,000; (6) 1996 - $ 80,000.

Cuillo was first notified of Chamberlain's default by letter from appellees' counsel on October 28, 1998. The letter advised Cuillo that his assignee had defaulted and that Cuillo was obligated by the assignment to the appellees. He was notified that $ 200,000 plus prejudgment interest and attorney's fees were due and owing. If the amount owed was not paid, suit would be filed.

Suit was filed on February 26, 1999, with Cuillo the only defendant and appellees seeking damages in the amount of $ 200,000 plus prejudgment interest. Cuillo filed a Third-Party Complaint against Chamberlain. n1 Both Cuillo and appellees filed their Motions for Summary Judgment. At the summary judgment hearing, Cuillo argued, inter alia, that the appellees' claim was barred by the statute of limitations. On July 31, 2000, the trial court entered Final Summary Judgment in favor of appellees and awarded them $ 200,000, reserving jurisdiction to award prejudgment interest. Cuillo's Motion  [*6]  for Summary Judgment was denied. Cuillo timely filed his Notice of Appeal on August 24, 2000.

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n1 Chamberlain is not a party to this appeal.
 

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Appellees filed a motion to assess prejudgment interest and a hearing was held on October 10, 2000. Cuillo argued that prejudgment interest should be calculated from the time he was notified of the default and not before. Appellees argued it should be calculated from the date of the last payment in 1996. The trial court awarded prejudgment interest from the date of the notice to Cuillo and entered an Amended Final Summary Judgment with that provision. That judgment was entered on January 22, 2001, and Cuillo filed another Notice of Appeal on February 2, 2001. Appellees filed their cross-appeal on February 8, 2001. We affirm the trial court in all respects.

Cuillo argues that the five-year statute of limitation set forth in section 95.11(2)(b), Florida Statutes (1997), bars the enforcement of this debt because the default occurred more than five years  [*7]  before the suit was filed. He further argues that the statute of limitations was not tolled by partial payments made by Chamberlain. Appellees argue that under section 95.051(1)(f), Florida Statutes, the statute of limitation was tolled by partial payments made by Chamberlain. Section 95.051(1)(f) provides:

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

. . .

(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.
 
(Emphasis added).

In Chaplin v. Estate of Cooke, 432 So. 2d 778 (Fla. 1st DCA 1983), the court stated:

In 1975 the legislature added § 95.051(1)(f) . . . This is the only subsection dealing specifically with written instruments and acts which would toll the running of time on written instruments. Under the provisions of § 95.051(1)(f), the only act which would toll the time for the running of the statute of limitations was the payment of any part of the principal or interest, since any contrary case law was superseded by § 95.051.
 
Id. at 779.

Cuillo argues that  [*8]  because he did not make the partial payments, the tolling of the statute of limitation for those partial payments did not apply to him. The cases cited in support of that position are cases which were decided prior to the enactment of section 95.05(1)(f) and, therefore, do not apply. The statute itself does not require any particular person or entity to make the partial payment to toll the statute. The original agreement stated that any assignment of the agreement by Toyota of Palm Beach shall not relieve it of its obligations to pay the McCoys under the original agreement. Cuillo's assumption of the original agreement bound him to follow the terms of the original agreement. Therefore, we hold that by application of section 95.01(1)(f), the partial payments made by Chamberlain toll the statute of limitations as a matter of law and the trial court was correct in granting the summary judgment.

On cross-appeal, the McCoys assert the trial judge erred when she determined that prejudgment interest should run from the notice of default to Cuillo. The McCoys contend that the prejudgment interest should run from the date of the default not the date of the notice of default. We disagree.  [*9]  

In Broward County v. Finlayson, 555 So. 2d 1211 (Fla. 1990), the supreme court held:

In Kissimmee Utility Authority v. Better Plastics, Inc., 526 So. 2d 46 (Fla. 1988), we reaffirmed our decision in Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985), and stated the general rule concerning the payment of prejudgment interest: "Once damages are liquidated, prejudgment interest is considered an element of those damages as a matter of law, and the plaintiff is to be made whole from the date of the loss." 526 So. 2d at 47.
This general rule is not absolute. In Flack v. Graham, 461 So. 2d 82 (Fla. 1984), we refused to permit recovery of any prejudgment interest, stating: "'Interest is not recovered according to a rigid theory of compensation for money withheld, but
is given in response to considerations of fairness.
It is denied when its exaction would be inequitable.'" Id. at 84 (quoting Board of Commissioners v. United States, 308 U.S. 343, 352, 60 S. Ct. 285, 289, 84 L. Ed. 313 (1939).
 

555 So. 2d at 1213 (citation omitted).


In Finlayson,  [*10]  a class action by emergency medical technicians (EMTs) sought overtime pay from Broward County for hours worked above 40 hours per week when pursuant to their contract with Broward County they were required to average 56 hours per week. The EMTs sought overtime for the period from 1973 until 1979. They gave notice to Broward County of the claim in 1980 and that was the first notice Broward County received. Upon awarding overtime from 1978 to 1979 (the period left within the statute of limitations), the trial court awarded prejudgment interest from 1978. The supreme court remanded for calculation of interest from the date of notice to Broward County because it was inequitable to award prejudgment interest before there was notice and Broward County was unaware of the discrepancy.

At the hearing for prejudgment interest, the trial court concluded that it would be inequitable under all the circumstances of the case to award prejudgment interest before Cuillo had notice of the default. The trial judge did not abuse her discretion in finding that prejudgment interest should run from the date Cuillo received notice of the default by Chamberlain and not the date of the default.

AFFIRMED.  [*11]  
 
STEVENSON and GROSS, JJ., concur.




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2001 Fla. App. LEXIS 17843,*;801 So. 2d 1021;
27 Fla. L. Weekly D 49
RALPH M. BENFIELD, Appellant, v. THE EVEREST VENTURE GROUP, INC. f/k/a SOUTHEASTERN INSURANCE CONSULTANTS & ANALYSTS, INC. d/b/a S.I.C.A. INC. f/k/a S.I.C.A., INC.; and BRIAN ABELES, an individual, Appellees.
CASE NO. 2D00-5084
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
801 So. 2d 1021;2001 Fla. App. LEXIS 17843;27 Fla. L. Weekly D 49
    December 19, 2001, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication January 14, 2002.
  PRIOR HISTORY:   Appeal from the Circuit Court for Hillsborough County; Robert H. Bonanno, Judge.
DISPOSITION:   Reversed and remanded.
COUNSEL:   Charles R. Harrison of Law Firm of Charles R. Harrison, Winter Park, for Appellant.
 
Murray B. Silverstein of Law Offices of Murray B. Silverstein, St. Petersburg, for Appellees.
JUDGES:   BLUE, Chief Judge. WHATLEY and CASANUEVA, JJ., Concur.
OPINIONBY:   BLUE
OPINION:  
 
BLUE, Chief Judge.

Ralph M. Benfield appeals the dismissal with prejudice of his complaint against The Everest Venture Group, Inc., and Brian Abeles seeking collection of a promissory note. The trial court ruled the statute of limitations barred the claim. We conclude that partial payments made on the note tolled the applicable limitations period, and therefore, we reverse.

The promissory note at issue was executed in 1986 and called for payment to be made in thirty-six monthly installments beginning in September of 1991. It appears from the record that the installment payments were never made as called for in the note. However, the complaint alleged seven partial payments were made on the note  [*2]  beginning in 1992, with a final partial payment on May 31, 1995. The complaint further alleged that on more than one occasion the partial payments, including the last payment, were accompanied by written acknowledgments of the debt. Benfield filed his complaint for collection of the promissory note on September 8, 1998.

Everest and Abeles argued to the trial court that the acceleration clause contained in the promissory note resulted in a default in 1991 when they failed to make the installment payments. They further argued that once in default, the five-year statute of limitations applicable to an action on the note began to run; thus the complaint filed in 1998 was untimely. The trial court agreed and dismissed the complaint with prejudice.

Benfield contends the action on the promissory note was timely because of the tolling provision in section 95.051(1)(f), Florida Statutes (1991). The applicable portions of section 95.051(1) state: "The running of the time under any statute of limitations . . . is tolled by: . . . (f) the payment of any part of the principal or interest of any obligation or liability founded on a written instrument." Everest and Abeles  [*3]  assert this provision does not apply when, as in this case, the acceleration clause in the note results in the entire balance of the debt becoming due and payable upon default in 1991.

Both sides have cited numerous cases in support of their respective positions on the issue before us. None of the cited cases answer the question we are required to resolve. We conclude that section 95.051(1)(f) is applicable and that partial payments tolled the limitations period. Section 95.051(1)(f) applies equally to promissory notes, with or without acceleration clauses. n1 Thus, we hold the trial court erred in dismissing Benfield's complaint as being in violation of the statute of limitations.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 We believe the failure to locate a case on this issue probably results from the clarity of the statute.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Accordingly, we reverse and remand for further proceedings.
 
WHATLEY and CASANUEVA, JJ., Concur.


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2001 Fla. App. LEXIS 17105,*;804 So. 2d 476;
26 Fla. L. Weekly D 2843
POPPY CHIMERAKIS, Appellant, vs. SENTRY INSURANCE MUTUAL COMPANY, Appellee.
CASE NO. 3D00-2963
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
804 So. 2d 476;2001 Fla. App. LEXIS 17105;26 Fla. L. Weekly D 2843
    December 5, 2001, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied February 6, 2002. Released for Publication February 6, 2002.
  PRIOR HISTORY:   An appeal from a non-final order from the Circuit Court for Miami-Dade County, Ronald Dresnick, Judge.
 
Chimerakis v. Sentry Ins. Mut. Co., 744 So. 2d 1250, 1999 Fla. App. LEXIS 15630 (Fla. Dist. Ct. App. 3d Dist. 1999) LOWER TRIBUNAL NO. 00-3676.
DISPOSITION:   Remanded.
COUNSEL:   De La Cruz & Cutler, P.A., and H. Jeffrey Cutler, and Albert D. Viener, for appellant.
 
Nelson, Mullins, Riley & Scarborough, L.L.P., and Tracy E. Tomlin, (North Carolina), for appellee.
JUDGES:   Before SCHWARTZ, C.J. and JORGENSON, and GREEN, JJ.
OPINIONBY:   GREEN
OPINION:  

GREEN, J.

This is an appeal from an order denying the appellant/insured's motion for summary judgment on her application to compel appraisal/arbitration against her insurer. In declining to compel appraisal/arbitration, the trial court concluded, based on a prior appeal in this case, that this action was barred, both by the doctrine of res judicata and by the statute of limitations. See Chimerakis v. Sentry Ins. Mut. Co., 744 So. 2d 1250 (Fla. 3d DCA 1999) ("Chimerakis I"). Under the unique circumstances of this case, we hold that "Chimerakis I" cannot serve as a bar to this action and reverse for the reasons which follow.

This dispute began after Poppy Chimerakis' home was damaged by  [*2]  Hurricane Andrew in 1992 and she notified her insurer, Sentry Insurance Mutual Co. ("Sentry") of her losses. After investigating the losses, Sentry paid Chimerakis $ 1,000. Approximately five years later, Chimerakis notified Sentry that she had discovered additional damages attributable to the hurricane and that Sentry had underpaid the loss. At that time, Chimerakis demanded an appraisal of the loss pursuant to the appraisal clause contained in the insurance policy. The appraisal clause required Sentry to designate its appraiser within twenty days.

At the time of Chimerakis' demand for appraisal, the law in this district did not permit either the insured or the insurer to refuse to submit to an appraisal once a demand had been made. See United Community Ins. Co. v. Lewis, 642 So. 2d 59 (Fla. 3d DCA 1994). In response to the demand made by Chimerakis, Sentry stated that it would have to investigate her claim of loss, but Sentry did not designate an appraiser. Chimerakis treated Sentry's failure to designate an appraiser as a breach of contract, thereby relieving her of further performance under the policy, and filed the suit to compel appraisal/arbitration.

While  [*3]  her suit was pending below, we issued our opinion in Allstate Ins. Co. v. Sierra, 705 So. 2d 119 (Fla. 3d DCA 1998), which held that where the existence of an appraisal provision was not in dispute, the insurer was required to submit to an appraisal as a matter of law. Sierra did not address whether the insured was required to perform any conditions precedent to an appraisal.

Sentry answered Chimerakis' complaint, raised affirmative defenses and filed a counterclaim which alleged, among other things, that Chimerakis had not performed contractual conditions precedent to appraisal. Sentry then moved for summary judgment on its defense of Chimerakis' failure to perform conditions precedent. Chimerakis responded to the motion for summary judgment by arguing that her performance of conditions precedent was not required and that she was entitled to an appraisal, pursuant to Sierra, as a matter of law. The trial court granted Sentry's motion for summary judgment and denied Chimerakis application to compel arbitration. Chimerakis appealed this order.

During the pendency of Chimerakis I, we issued our decision in Perez v. Allstate Ins. Co., 709 So. 2d 591 (Fla. 3d DCA 1998),  [*4]  which held that an insured could compel appraisal/arbitration solely upon furnishing a sworn proof of loss. n1 Further, prior to the disposition of Chimerakis I, we issued our en banc decision in USF&G Co. v. Romay, 744 So. 2d 467 (Fla. 3d DCA 1999), wherein we receded from our decisions in Sierra, Perez, Martinez, and Llaguno and held that a policyholder's performance of all of the policy's preconditions was required prior to granting a motion to compel an appraisal. Accordingly, all of the cases consolidated for consideration under Romay were remanded with directions that the trial court require compliance with the policy's preconditions to appraisal prior to granting motions to compel appraisal.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -  

n1 Accord Martinez v. Allstate Ins. Co., 718 So. 2d 368 (Fla. 3d DCA 1998); Llaguno v. ARI Mut. Ins. Co., 719 So. 2d 311 (Fla. 3d DCA 1998).
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

As a result of this change in the law, Chimerakis, in her reply brief filed in Chimerakis I, requested  [*5]  that if our court found that she had failed to comply with any conditions precedent to appraisal that we likewise remand her cause with directions permitting her to comply with any such conditions. Our court, however, affirmed the summary judgment in Chimerakis I without opinion.

Chimerakis points out that approximately three weeks later, in a case factually identical to Chimerakis I, we issued Aguiar v. USF&G Co., 748 So. 2d 343 (Fla. 3d DCA 1999), wherein we remanded with directions, among other things, to permit the plaintiff to satisfy the applicable pre-appraisal policy conditions under Romay.

Following Aguiar, Chimerakis faxed a letter to Sentry's attorney requesting that she be permitted to perform the policy conditions precedent to an appraisal. Sentry refused to permit Chimerakis to comply with the conditions precedent to appraisal and responded that it was relieved of any obligations in connection with her claim by virtue of our holding in Chimerakis I.

Chimerakis thereafter filed the action below seeking to compel an appraisal of her claims. Sentry moved to dismiss this action on the grounds that it was barred by the doctrine of res  [*6]  judicata and that Chimerakis had failed to perform conditions precedent to appraisal. Chimerakis moved for summary judgment on her application to compel appraisal. The trial court denied this motion and agreed with Sentry that this action was barred by the doctrine of res judicata as well as the statute of limitations. Chimerakis then took the instant appeal.

Chimerakis argues that the trial court's determination that Chimerakis I has a res judicata effect on this action was erroneous for three reasons. First, she asserts that the trial court's disposition of Chimerakis I was not a ruling on the merits. Next, she maintains that the current appeal (i.e. "Chimerakis II") arises out of a new set of facts, namely, Sentry's breach of contract by expressly refusing to allow her to comply with the policy's conditions precedent to appraisal and its denial of coverage. Finally, she maintains that the doctrine of res judicata should not be applied to bar this action because she has at all times attempted to comply with the requirements of the law of this district to obtain an appraisal, but those requirements were twice changed during the pendency of Chimerakis I. We find no merit  [*7]  to the first two reasons, but conclude that the application of the res judicata doctrine to bar this action would work an injustice to Chimerakis.

The doctrine of res judicata bars an action based upon a final judgment entered in a prior action where there is an identity: (1) in the thing sued for in both actions; (2) in the cause of action in both actions; (3) of the parties in both actions, and (4) of the capacity of the parties in both actions. See Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984); West v. Kawasaki Motors Mfg. Corp., 595 So. 2d 92, 94 (Fla. 3d DCA 1992). This doctrine rests upon the sound principle that litigation should come to an end and that "in the interest of the State every justiciable controversy should be settled in one action in order that the courts and the parties will not be bothered for the same cause by interminable litigation." See Universal Const. Co. v. City of Fort Lauderdale, 68 So. 2d 366, 369 (Fla. 1953 ), quoting Gordon v. Gordon, 59 So. 2d 40, 44 (Fla. 1952). Nevertheless, the doctrine of res judicata is not an absolute doctrine and should not be adhered to where its strict  [*8]  application would work an injustice. See Universal Const. Co., 68 So. 2d at 369; Jefferson, 24t Crocker Inv. v. Statesman Ins. Co., 515 So. 2d 1305, 1307 (Fla. 3d DCA 1987). As stated by the supreme court:

. . . when a choice must be made we apprehend that the State, as well as the courts, is more interested in the fair and proper administration of justice than in rigidly applying a fiction of the law designed to terminate litigation.
 
Universal Const. Co., 68 So. 2d at 369.

Although we agree with Sentry and the lower court that all of the elements for res judicata appear to exist, we do not believe that this doctrine should be rigidly adhered to under the facts and circumstances of this case. First of all, the record reflects that at all times, Chimerakis attempted to comply with the legal prerequisites for an appraisal of her claims. The law in this district regarding the prerequisites for an appraisal/arbitration pursuant to an insurance policy was unsettled and indeed changed twice during the pendency of Chimerakis I. Moreover, in our en banc decision of Romay, we afforded policyholders similarly situated to Chimerakis the opportunity  [*9]  to comply with the conditions precedent in their policies prior to an appraisal/arbitration. We think that the interests of justice dictate that we also permit Chimerakis to comply with the conditions precedent in her policy. We therefore decline to allow Chimerakis I to operate as a bar to the instant action for an appraisal.

We next address the trial court's sua sponte determination that this action for an appraisal is nevertheless barred by the statute of limitations. Pursuant to Section 95.11(2)(b), Florida Statutes (1995), a legal or equitable action on a contractual obligation or liability founded on a written instrument must be commenced within five years. The intent of this statute is to limit the commencement of actions from the time of their accrual. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996). "However, a cause of action cannot be said to have accrued, within the meaning of the statute of limitations, until an action may be brought." Id.

As Chimerakis correctly asserts, under Romay, an insured cannot compel appraisal until the insured has performed all of the policy conditions precedent  [*10]  to appraisal. Therefore, an action to compel appraisal does not accrue until the policy conditions precedent have been performed or waived, and appraisal is then refused.

Our decision in Chimerakis I, issued on November 24, 1999, found that Chimerakis could not compel appraisal because she had not yet performed the policy's conditions precedent to appraisal. Thus, at that time, the statute of limitations could not have begun to run. Thereafter, the statute could only have begun to run for this action when Chimerakis offered to perform the conditions precedent and Sentry refused to allow such performance. This refusal occurred no earlier than December 16, 1999. Chimerakis commenced this action on February 2, 2000 which clearly was within the limitations period. The lower court's determination to the contrary was thus erroneous.

We therefore reverse the order under review for the foregoing reasons and remand for further proceedings.

Reversed.


 
 
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2001 Fla. App. LEXIS 16675,*;805 So. 2d 975;
26 Fla. L. Weekly D 2801
CARL SMITH, Appellant, v. FRONTIER COMMUNICATIONS INTERNATIONAL, INC., Appellee.
CASE NO. 2D00-4082
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
805 So. 2d 975;2001 Fla. App. LEXIS 16675;26 Fla. L. Weekly D 2801
      November 28, 2001, Opinion Filed
 PRIOR HISTORY:    [*1]   Appeal from the Circuit Court for Sarasota County; Robert W. McDonald, Jr., Judge.
DISPOSITION:   Reversed and remanded.
COUNSEL:   Robert K. Robinson and Charles D. Bailey, III of Bowman, George, Scheb, Toale & Robinson, Sarasota, for Appellant.
 
John R. Hargrove, W. Kent Brown, and Dana McElroy of Heinrich Gordon Hargrove Weihe & James, P.A., Fort Lauderdale, for Appellee.
JUDGES:   SILBERMAN, Judge. BLUE, C.J., and WHATLEY, J., Concur.
OPINIONBY:   Silberman
 OPINION:   SILBERMAN, Judge.

Carl Smith appeals the final summary judgment that was entered against him for damages arising from his personal guaranty. We reverse because genuine issues of material fact remained in dispute, precluding summary judgment.

In 1996, Frontier Communications International, Inc., entered into an agreement to provide prepaid calling card services to another company. The other company then assigned its rights and obligations under the agreement to Catalyst Communications, Inc. In 1997, Catalyst executed a promissory note and security agreement in favor of Frontier for services rendered under the calling card agreement. The principal amount of  [*2]  the note was $ 512,901.25.

Smith, who was an officer of Catalyst, signed an "absolute and unconditional" personal guaranty of the promissory note. In the event of a default by Catalyst, Smith promised to pay "such sums as may, from time to time, be due and owing under the Agreement with" Frontier. Smith waived any defense based on "the cessation or limitation of the liability of Catalyst from any cause other than full payment of all sums payable under the Note." He also waived any defense arising from Frontier's election of remedies.

In February 1998, Frontier and Catalyst entered into a settlement agreement which confirmed "the complete resolution of the relationships between" Frontier and Catalyst. The settlement agreement called for payment by Catalyst to Frontier in the total amount of $ 420,000, payable in monthly installments of $ 35,000 each. The settlement agreement specified that "all prior contracts, notes, agreements and other obligations shall be and are hereby canceled and/or merged into this letter agreement." Smith signed the settlement agreement on behalf of Catalyst, but not in an individual capacity.

Frontier received one installment payment from Catalyst under  [*3]  the settlement agreement, but the balance was not paid. Frontier then filed suit against Smith to enforce the personal guaranty. Smith denied liability and raised several affirmative defenses. He asserted that he was released from the guaranty because the obligation documented by the promissory note and security agreement was materially altered by the settlement agreement entered into by Catalyst and Frontier, the alteration was to his detriment, and he did not consent to or execute the settlement agreement in his individual capacity.

Eventually, Smith filed a motion for summary judgment. Frontier filed an affidavit in opposition asserting that the settlement agreement was not intended to cancel the personal guaranty or otherwise affect the obligations created by the guaranty. The trial court denied Smith's motion.

Frontier then filed its own motion for summary judgment. At the time of the hearing on the motion, the record included the pleadings, discovery responses, Frontier's previously filed affidavit, and Smith's deposition.

Following the hearing, the trial court entered an order granting partial summary judgment in favor of Frontier but allowing Smith an opportunity to file  [*4]  a motion to seek additional credits against the amount claimed by Frontier. Ultimately, the trial court entered a final judgment in favor of Frontier in the principal amount of $ 477,901.25, plus interest, for a total of $ 609,324.08. The principal amount was calculated using the original amount due under the promissory note less the payment of $ 35,000 made pursuant to the settlement agreement.

In this appeal, Smith argues that the trial court erred in granting summary judgment because there were genuine issues of material fact that were unresolved. Alternatively, he asserts that even if no factual issues existed, Frontier was not entitled to a judgment as a matter of law.

"[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought." Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).  [*5]

Until the party seeking entry of a summary judgment meets its burden, there is no duty on the other party to demonstrate the existence of a genuine issue of material fact. Jones Const. Co. of Central Fla., Inc. v. Fla. Workers' Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001).

On appeal, the standard of review of a summary judgment order is de novo. Volusia County, 760 So. 2d at 130. Where the interpretation or construction of a written instrument and the legal effect to be drawn from the instrument is at issue, the appellate court is not restricted in its ability to reassess the meaning and effect of the instrument, and the appellate court may reach a conclusion contrary to the conclusion of the trial court. Angell v. Don Jones Ins. Agency, Inc., 620 So. 2d 1012, 1014 (Fla. 2d DCA 1993).

The record reflects that substantial factual disputes were not conclusively resolved for purposes of summary judgment. While Smith guaranteed Catalyst's performance of its obligations under the promissory note in the event of a default, the settlement agreement stated that the note was "canceled and/or merged" into the agreement. The settlement  [*6]  agreement did not state that the full face amount of the original promissory note would be due and owing if the required payments were not made, and it did not condition the cancellation or merger of the original promissory note on full payment being made.

Although the trial court accepted Frontier's argument that the settlement agreement was not intended to relieve Smith from liability for the original debt, the settlement agreement and the record as a whole raise doubts concerning Smith's continued liability. Smith's position was that the settlement agreement documented that Frontier was owed a total of $ 420,000, not the higher amount reflected in the promissory note. He testified in his deposition that he signed the settlement agreement on behalf of Catalyst and that he wanted to make sure the settlement agreement "did away" with his personal guaranty. He stated that it was "in every one's mind" (sic) that the settlement agreement did away with the guaranty and that one of his primary contacts at Frontier confirmed the settlement agreement "covered everything."

The affidavit filed by Frontier took a contrary position. Frontier asserted that the settlement agreement was not  [*7]  intended to cancel or otherwise affect the obligations created by the personal guaranty.

Because an issue was raised regarding the intent of the parties to the settlement agreement, and because the settlement agreement was ambiguous and reasonably susceptible to more than one interpretation, summary judgment was not proper. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999); Frazier v. Schenck, 503 So. 2d 444, 446 (Fla. 2d DCA 1987); Fecteau v. Southeast Bank, N.A., 585 So. 2d 1005, 1007 (Fla. 4th DCA 1991). By entering a summary judgment, the trial court erroneously resolved a disputed issue as to intent and resolved an ambiguity that was subject to more than one interpretation.

We also note that the trial court did not directly address Smith's affirmative defenses. While Frontier argued that the defenses were legally insufficient, it had the burden to disprove the defenses or to establish their legal insufficiency. See Anderson v. Rosetree Vill. Ass'n, Inc., 540 So. 2d 173, 174 (Fla. 2d DCA 1989); SAC Constr. Co. v. Eagle Nat'l Bank of Miami, 449 So. 2d 301, 303 (Fla. 3d DCA 1984).  [*8]  The record does not demonstrate that the burden was met.

Because genuine issues of material fact remained in dispute, we reverse the judgment and remand for further proceedings.

Reversed and remanded.
 
BLUE, C.J., and WHATLEY, J., Concur.


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2001 Fla. App. LEXIS 16041,*;799 So. 2d 382;
26 Fla. L. Weekly D 2713
ARA YARDUM, Appellant, v. ANDREW SCALESE, an individual; and THE WITTINGTON CONDOMINIUM APARTMENTS, INC., a Florida not-for-profit corporation, Appellees.
CASE NO. 4D00-3097
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
799 So. 2d 382;2001 Fla. App. LEXIS 16041;26 Fla. L. Weekly D 2713
   November 14, 2001, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication November 30, 2001.
  PRIOR HISTORY:   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert L. Andrews, Judge; L.T. Case No. 98-014675 (09).
DISPOSITION:   REVERSED AND REMANDED.
COUNSEL:   David M. Beckerman of David M. Beckerman, P.A., Boca Raton, for appellant.
 
Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellee Andrew Scalese.
JUDGES:   POLEN, C.J., GUNTHER and WARNER, JJ., concur.
OPINION:  
 
PER CURIAM.

Ara Yardum ("Appellant") sued Andrew Scalese ("Appellee") for trespass, private nuisance, and negligence in connection with renovations to Appellee's condominium unit that Appellant alleges infringed upon the quiet enjoyment of his condominium unit that is located directly below the Appellee's. The trial court granted final summary judgment in favor of the Appellee from which the Appellant now appeals. We reverse and remand.

The Appellant and Appellee were both owner-residents in the Wittington Condominium community. Shortly after moving into the unit directly above Appellant, the Appellee began renovations to replace the bathroom tub with a Roman Tub Jacuzzi. After construction began, the homeowner's association  [*2]  ordered the Appellee to halt construction until proper approval was obtained from the board. The Appellee submitted a written request for permission accompanied by a county building permit, a copy of the plumber's license and liability insurance information covering the repairs. Subsequently, the board granted written permission stating in part, "we are pleased to inform you that since you provided the Association with the necessary documents the Board of Governors hereby grants you permission to replace the section of the main waste line which is common property in your bathroom." After receipt of the letter conveying the board's consent, the Appellee sent a second letter to the board requesting clarification from the association regarding the extent of their permission to commence work. No response from the board was forthcoming.

Construction recommenced and consisted of extensive drilling into the concrete slab that comprised both the floor of Appellee's unit and the ceiling of the Appellant's unit. The Appellee's contractor drilled several enlarging holes in the concrete through which he fitted pipes joining the new tub to the main vent stack. These pipes extended through the  [*3]  slab into the Appellant's apartment into the area above the drop ceiling which concealed them from view.

After the pipes were installed, the Appellant sued Appellee based upon their intrusion into the Appellee's apartment. In defense, the Appellee argues that the declaration of condominium provides an easement in the space through which he may run pipes in order to maintain his apartment. The Appellee further urges that the permission granted by the board authorized him to drill through the floor and alter the existing pipe system.

The Appellant argues that genuine issues of material fact remain in dispute regarding the scope and bounds of the permission granted by the board.

Summary judgment is proper only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Where no genuine issue of material fact is shown to exist, the only question for the appellate court is whether the summary judgment was properly granted under the law. See Wesley Constr. Co. v. Lane, 323 So. 2d 649, 650 (Fla. 3d DCA 1975). If even  [*4]  the slightest doubt exists as to any issue of material fact, a summary judgment must be reversed. See Beary v. Gay, 732 So. 2d 478, 480 (Fla. 5th DCA 1999). Where a written instrument lends itself to more than one reasonable interpretation, it is ambiguous and therefore summary judgment is improper for either party. See King v. Sturge, 113 So. 2d 257, 258 (Fla. 3d DCA 1959).

In the case at bar the issue raised revolves around the scope of the consent intended by the board of the association. If in fact the board intended the consent to include permission to alter the existing pipes, as Appellee contends, then the installation is in compliance with the declaration of condominium. Conversely, if the intended scope of permission covers only the authority to tie into the existing waste drain pipe without substantial alteration, then the installation and construction were done without permission of the association.

In this case, the determination of the scope of the consent, based upon the intent of the parties does not lend itself well to determination by summary judgment. Because the written permission granted by the board is reasonably open to differing  [*5]  interpretations, summary judgment was not proper in this case.

Accordingly, the summary judgment appealed is reversed, and the matter is remanded for further proceedings.

REVERSED AND REMANDED.
 
POLEN, C.J., GUNTHER and WARNER, JJ., concur.


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2001 Fla. App. LEXIS 14652,*;805 So. 2d 22;
26 Fla. L. Weekly D 2439
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. LOST TREE VILLAGE CORPORATION, Appellee.
CASE NO. 4D00-3405
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
805 So. 2d 22;2001 Fla. App. LEXIS 14652;26 Fla. L. Weekly D 2439
     October 10, 2001, Opinion Filed
 PRIOR HISTORY:    [*1]   Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Scott M. Kenney, Judge; L.T. Case No. 99-93 CA 13.
 
Bd. of Trs. of the Internal Improvement Trust Fund v. Lost Tree Vill. Corp., 2001 Fla. App. LEXIS 8927 (Fla. Dist. Ct. App. 4th Dist. June 20, 2001)
DISPOSITION:   Affirmed in part, reversed in part, and remanded for further proceedings.
COUNSEL:   Robert A. Butterworth, Attorney General, and Monica K. Reimer, Assistant Attorney General, Tallahassee, and Andrew J. Baumann, Assistant General Counsel of the Department of Environmental Protection, Tallahassee, for appellant.
 
Jack J. Aiello and Ernest A. Cox of Gunster, Yoakley & Stewart, P.A., West Palm Beach, and Stephen H. Grimes of Holland & Knight, LLP, Tallahassee, for appellee. ON MOTION FOR REHEARING.
JUDGES:   STEVENSON, J. FARMER and SHAHOOD, JJ., concur.
OPINIONBY:   STEVENSON
OPINION:  
 
STEVENSON, J.

We grant the appellant's motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

This is an appeal from a final judgment in a quiet title action involving a number of tracts of land in the Indian River. The dispute stems from a 1950 deed and a 1956 supplemental deed issued by the Board of Trustees of the Internal  [*2]  Improvement Trust Fund (the trustees) conveying state-owned lands to Fred Tuerk, Lost Tree's predecessor-in-title. After a non-jury trial, the court ruled in favor of Lost Tree, finding that the 1956 supplemental deed unambiguously conveyed 571.51 acres to Fred Tuerk, including both islands and submerged lands. The trial judge then ruled that Lost Tree's surveyor, David Jones, accurately placed the boundaries of the property on the ground overlapping the main barrier island. n1 We affirm in part and reverse in part.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 If the boundary lines of the property reach the shores of the Indian River, Lost Tree will not be required to obtain the trustees' approval to build a bridge connecting the islands to the mainland. Lost Tree intends to develop the property as a premier residential island community.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


 
Factual background

In 1950, Fred Tuerk applied to the trustees to purchase nine tracts of land owned by the state. Along with the purchase application, Tuerk submitted a duplicate of a 1930 map prepared  [*3]  by the R.D. Carter Surveying Firm in Vero Beach, which diagramed the nine tracts in question. n2 As shown on this map, the boundary lines of the tracts included islands and submerged lands, but fell short of the main barrier island and stopped in the Indian River. On September 26, 1950, the trustees conveyed the tracts of land to Tuerk by deed. This 1950 deed gave a brief description of the nine tracts and stated that the conveyance contained "365 acres, more or less." The tracts identified in the 1950 deed did not contain metes and bounds descriptions. At Tuerk's request, the trustees issued a "deed supplement" in 1956 bearing metes and bounds descriptions for each tract. The tracts' descriptions were followed by the statement "containing 571.51 gross acres, more or less, lying and being in Indian River County, Florida, and for payment purposes, a net acreage of 365 acres." The metes and bounds descriptions in the 1956 deed were consistent with those written on the 1930 map.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 Throughout this case, the 1930 map is also referred to as a plat and a survey.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*4]  
 
The acreage

At the conclusion of the final hearing, the trial judge determined that the 1956 deed was unambiguous on its face and conveyed 571.51 acres, including all of the property within the metes and bounds description.

The construction of a contract, or other written instrument, is a question of law that is reviewed de novo. See Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So. 2d 294, 296 (Fla. 4th DCA 2000); Mariner Cay Prop. Owners Ass'n v. Topside Marina, Inc., 714 So. 2d 1130, 1131-32 (Fla. 4th DCA 1998).

Our de novo review convinces us that, like the trial judge found, the deed was not ambiguous and conveyed 571.51 acres.

The 1956 deed first lists the tracts of land followed by their metes and bounds descriptions, then states:

Containing 571.51 gross acres, more or less, lying and being in Indian River County, Florida, and for payment purposes, a net acreage of 365 acres.
 
Appellant argues that since it was not proper for the trustees to make a "gift" of state lands, n3 the phrase - "and for payment purposes 365 acres" - indicates that the trustees actually intended to convey only 365 acres, not 571.51. Despite this  [*5]  opaque reference to payment, we find that the deed unequivocally conveys 571.51 acres. Any ambiguity created by the statement "and for payment purposes 365 acres," relates only to the method used to calculate payment for the tracts. In regard to setting the price though, the trustees were allowed to sell and convey the islands and submerged lands "upon such prices and terms as they [saw] fit." See § 253.13, Fla. Stat. (1941).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 The trustees are only authorized to sell state-owned islands and submerged lands. See § 253.13, Fla. Stat. (1941). This statute was referenced in the deed.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

A clear, explicit and certain description of land in a deed will not be varied by a generalized and less definite description. See Black v. Skinner Mfg. Co., 53 Fla. 1090, 43 So. 919, 921 (Fla. 1907); P'ship Props. Co. v. Sun Oil Co., 552 So. 2d 246, 247 (Fla. 1st DCA 1989). The phrase "containing 571.51 acres" is clear, explicit  [*6]  and definitive, and thus, must be preferred in the interpretation of this deed over the words "for payment purposes 365 acres," which are of uncertain import. We also agree with Lost Tree's argument that even if the deed contains an unclear acreage estimate, the boundaries of the property, and the acreage contained therein, must be determined by the superior call to the metes and bounds descriptions:

"Of all the descriptive particulars in a deed, quantity is regarded as the least reliable, and yields to calls for monuments as well as to courses and distances, unless a clear intent to convey a certain quantity is manifested. Where a deed describes the land conveyed by well-defined metes and bounds, and states the number of acres contained therein, the more certain description by boundaries must govern the construction of the call; and both grantor and grantee, in the absence of fraud, take the risk as to the quantity of the land."
 
Mogee v. Haller, 222 So. 2d 468, 469 (Fla. 1st DCA 1969)(quoting 10 FLA. JUR. 151 Deeds § 145 and citing 23 AM. JUR. 2D 280 Deeds § 240).

Even though the trial judge determined that the deed was unambiguous as to the acreage  [*7]  conveyed, he nevertheless received parol evidence and other documentary evidence. In consideration of this evidence in the alternative, the trial court found that it too showed that 571.51 acres were intended to be conveyed. Because the extrinsic evidence supports the trial judge's findings, we affirm the alternative determination as well. Further, the totality of the extrinsic evidence surrounding the transactions between the parties, including consideration of the 1930 map, the 1950 deed, and the 1956 deed, could support the inference that the initial price established for the property included the gross acreage of 571.51. Therefore, we reject the trustees' argument that the final judgment essentially approves an improper "gift" of 206 acres of state lands.
 
The location of the property

In addition to claiming that the deeds were ambiguous as to the quantity of property conveyed, the trustees maintained that the deed was also ambiguous as to the property's location. The trustees contend that although the call for tract 25 to commence "at the southwest corner of Section 19" appears clear and unambiguous on its face, it is actually of uncertain meaning. The trustees  [*8]  argue that this call injects a latent ambiguity into the deed because a government monument for this corner was never set, and no reference to "the southwest corner of Section 19" appears in the field notes of the federal surveyor responsible for surveying the section lines in that township. Consequently, the trustees claim that review of the extrinsic evidence will reveal that the description contained calls to a federal public lands survey section corner which did not exist as part of the federal public lands survey.

The trustees contend that examination of the extrinsic evidence surrounding the transaction would show that when the original application to purchase the property was made, Tuerk presented a 1930 map which depicted the tracts as located entirely off-shore. The trustees then reason that the subsequent 1950 and 1956 deeds were both predicated on the parties' belief that the property was located as depicted on the 1930
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2001 Fla. App. LEXIS 12831,*;793 So. 2d 1129;
26 Fla. L. Weekly D 2210
STANLEY E. STRAMA, III, Appellant, v. UNION FIDELITY LIFE INSURANCE COMPANY, Appellee.
CASE NO. 1D00-3468
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
793 So. 2d 1129;2001 Fla. App. LEXIS 12831;26 Fla. L. Weekly D 2210
    September 11, 2001, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication September 28, 2001.
  PRIOR HISTORY:   An appeal from the Circuit Court for Duval County. Peter L. Dearing, Judge.
DISPOSITION:   REVERSED and REMANDED.
COUNSEL:   Brandon S. Peters of Morgan, Colling & Gilbert, P.A., Orlando, for Appellant.
 
Kenneth H. Haney and A. Graham Allen of Allen, Brinton & McCarthy, P.A., Jacksonville, for Appellee.
JUDGES:   KAHN, J. BARFIELD and PADOVANO, JJ., concur.
OPINIONBY:   KAHN
 OPINION:   KAHN, J.

The question in this case is whether the circuit court erred by applying the workers' compensation concept of "permanent total disability" to a claim brought by appellant under a credit disability insurance policy rather than recognizing an ambiguity in the policy. Finding that the trial court erred by failing to apply the correct law, we reverse the summary judgment and remand this case for further proceedings.

On December 19, 1995, Appellant Stanley Strama (Strama) bought a credit disability insurance policy from Appellee Union Fidelity Life Insurance Company (Union Fidelity) in connection with the credit purchase of an automobile. On August 2, 1996, Strama bought a second identical policy from Union Fidelity in connection  [*2]  with the credit purchase of a second automobile. The policies provided that Union Fidelity would pay Strama's monthly car payment if he became totally disabled while the insurance was in effect. Both policies define "totally disabled" as having a:

disability which (a) begins while your disability insurance is effective; (b) is the result of injury or sickness; (c) results in loss of time from your occupation or employment; (d) continues without interruption for the number of days stated in the Waiting Period in the schedule. It shall also mean during the first 12 months of covered disability, you are unable to perform the duties of the occupation in which you were engaged when your disability began; and after you have been disabled for 12 months, you are unable to engage in any occupation for which you are reasonably qualified. By reasonably qualified, we mean an occupation for which you have experience, education, or training.

On December 4, 1996, Strama injured himself while lifting a 50-pound package from an overhead shelf at the auto parts store where he worked. Strama underwent a cervical diskectomy and fusion on January 24, 1997, to relieve pressure from a damaged disk in his  [*3]  neck. Immediately following surgery, Strama experienced the sudden onset of pain in his right arm and he claims to have constant pain in his right arm and shoulder. According to Strama's primary treating physician, Dr. Mark C. Hofmann, Strama reached maximum medical improvement on or before July 16, 1997. Dr. Hofmann also assigned Strama permanent work restrictions including (1) no more than thirty hours work per week; (2) no lifting of greater than 20 pounds; (3) no repetitive push/pull activities or motions; and (4) the ability to change positions frequently. Dr. Hofmann has never found Strama's complaints of constant pain to be exaggerated or unbelievable.

Strama filed claims for credit disability benefits, which Union Fidelity received on January 7, 1997. Union Fidelity paid benefits from January 10, 1997, until November 12, 1998. Union Fidelity discontinued payments as of November 13, 1998, because their review of Strama's work restrictions indicated that Strama was no longer totally disabled pursuant to the terms of the insurance contract.

In July 1998, the Social Security Administration found that Strama was disabled under the terms of the Social Security Act and Strama began  [*4]  receiving benefits. Starting in the last quarter of 1999, Strama began working part-time for a title loan company. Strama claims this work is sporadic at best because his continuing pain limits the time he can work. Strama also claims that he is only able to work approximately six hours per week. Strama's boss at the title loan company stated that he usually pays Strama seven dollars per hour. Strama's canceled paychecks and paystubs indicate that, if he was paid seven dollars per hour, he worked an average of thirty hours per week between October 1999 and May 2000. Strama sued Union Fidelity for breach of contract. Union Fidelity moved for summary judgment contending, as a matter of law, that Strama could not meet the policy definition of total disability. In the course of discovery, Union Fidelity provided responses bearing on the policy definition. Union Fidelity's corporate representative testified at a deposition that under the terms of this credit disability policy, part-time employment does not "automatically disqualify" an insured from receiving credit disability payments. The same corporate representative, reviewing Union Fidelity's claims manual, observed that under the terms  [*5]  of the manual, part-time employment does not necessarily disqualify an individual from receiving benefits. In interrogatory answers, Union Fidelity clarified the meaning of "part-time work" in the claims manual:

"Part-time" work is generally considered to be work at any occupation in excess of zero hours per week up to thirty hours per week.
 
Finally, Union Fidelity answered an interrogatory asking whether an insured would have a total disability within the meaning of the applicable policies if the insured worked less than thirty hours per week. In this answer, Union Fidelity stated, "as the number of hours per week an insured is working increases, the less likely it is that the insured has a 'total disability' as that term is defined under the referenced certificate of insurance form."

Noting the testimony of Dr. Hofmann that Strama was capable of part-time employment, and further noting that Strama had in fact worked part-time and continued to work part-time, the circuit court found an absence of disputed issues of fact and construed the policy language at issue as follows:

The court finds that the only reasonable construction of the language "totally disabled" in the contract  [*6]  means that the Plaintiff is unable to engage in any part-time or full-time occupation for which he is reasonably qualified. This is consistent with the law as it relates to the area of worker's compensation which, although not identical to the issues in the instant case, is sufficiently related that the Court should consider the cases decided thereunder. In United States Fidelity and Guaranty Association v. Kemp, 658 So. 2d 1212 (Fla. 1st DCA 1995), the Court concluded that ". . . an ability to work part-time contradicts the conclusion that one is totally disabled." Comparing the definitions in the worker's compensation statute with that in the contracts in the instant case, this Court finds no reason to reach a different conclusion. Consequently, this court finds that because the Plaintiff was able to engage in part-time employment from at least the date that his benefits were terminated under the insurance contract to the present date, he is not entitled to receive the "total disability" benefits under the contract. . . ."
 
The trial court implicitly rejected appellant's argument that the term "occupation," as used in the policy, was ambiguous.

The interpretation  [*7]  of a contract is a matter of law to be determined by the court. See DEC Elec., Inc. v. Raphael Constr. Corp., 558 So. 2d 427, 428 (Fla. 1990). Nevertheless, when the terms of the contract are ambiguous, susceptible to different interpretations, parol evidence is admissible to "explain, clarify or elucidate" the ambiguous term. Friedman v. Va. Metal Prods. Corp., 56 So. 2d 515, 517 (Fla. 1952).
The initial determination of whether the contract term is ambiguous is a question of law for the court, and, if the facts of the case are not in dispute, the court will also be able to resolve the ambiguity as a matter of law. See Ellenwood v. S. United Life Ins. Co., 373 So. 2d 392, 394 (Fla. 1st DCA 1979).
However, "where the terms of the written instrument are disputed and reasonably susceptible to more than one construction, an issue of fact is presented as to the parties' intent which cannot properly be resolved by summary judgment." Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc., 513 So. 2d 218, 219 (Fla. 1st DCA 1987).

Summary judgment is appropriate "only if there is no genuine issue of material fact  [*8]  and if the moving party is entitled to a judgment as a matter of law." Menendez v. Palms West Condo. Ass'n, 736 So. 2d 58, 60 (Fla. 1st DCA 1999). When "there is a genuine issue of material fact as to the interpretation that the parties gave the ambiguous contract provision," summary judgment is inappropriate. Hancock v. Brumer, Cohen, Logan, Kandell & Kaufman, 580 So. 2d 782, 784 (Fla. 3d DCA 1991).

Here, the trial court did not apply the correct law to the terms of these contracts. Florida law does not support the trial court's conclusion that the workers' compensation concept of total disability should be applied to a disability insurance contract. In our workers' compensation jurisprudence, "an ability to work part-time contradicts the conclusion that one is totally disabled." Kemp, 658 So. 2d at 1213. Workers' compensation law does not apply the occupational disability test contained in this insurance contract. Instead, under workers' compensation law, a claimant seeking a permanent total disability award must demonstrate inability to engage in any meaningful employment. See id.; see also Wal-mart Stores, Inc. v. Liggon, 668 So. 2d 259 (Fla. 1st DCA 1996).  [*9]  The trial court erred by focusing upon the workers' compensation definition of total disability, rather than the provisions of the contract requiring that the insured be unable to engage in any occupation for which the insured is reasonably qualified.

Further, the trial court overlooked case law that is more applicable to the present case and is useful in examining the construction of the concept of total disability and the word "occupation." In New York Life Insurance Co. v. Lecks, the policy at issue defined total disability "to be such injury or disease as to prevent the insured 'thereby from engaging in any occupation whatsoever for remuneration or profit.'" 122 Fla. 127, 165 So. 50, 51 (Fla. 1935). The Lecks court explained that the definition of total disability in the policy was qualified by reference to the insured's inability to engage in any occupation for remuneration or profit:

A person may be injured or diseased to such an extent as to prevent him from engaging in an occupation for remuneration or profit, but which would not prevent an occasional subsidiary employment or avocation.

The term 'occupation' is itself a relative one, having relation to one's capabilities.  [*10]  A person whose occupation is that of merchant, or mechanic, or day laborer, who becomes 'wholly disabled' from engaging in his occupation, might nevertheless, after years of preparatory study and mental training, follow some gainful occupation, but, until that end is accomplished and the insured is receiving profits or remuneration from his new vocation, the insurance company carrying the insurance for the injured person would not under a clause like the one included in the policies in this case be justified in refusing the monthly benefit payments on the possibility of the insured ultimately obtaining profits from following a different occupation from that which he was engaged in when the policy was written. Nor would it be justified in discontinuing the monthly disability payments so soon as the injured person recovered partially from his injuries enough to enable him to occasionally render some small service related or unrelated to his occupation.
 
165 So. at 52. The supreme court in Lecks also explained that "the application of the disability clause in any case is under proper pleadings one of fact and not of law." Id.

More recently, the supreme court  [*11]  considered the meaning of "inability to engage in your occupation" within the context of a disability policy. Berkshire Life Ins. Co. v. Adelberg, 698 So. 2d 828, 830 (Fla. 1997). Relying upon Fireman's Fund Ins. Co. v. Boyd, 45 So. 2d 499 (Fla. 1950), the court observed a longstanding tenet of Florida insurance law that "an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer." Adelberg, 698 So. 2d at 830. The Adelberg court went on to cite "commonly accepted definitions" of occupation:

Our conclusion is further bolstered by the definition of the term "occupation" in the American Heritage College Dictionary 944 (3d ed. 1993) as "an activity that is one's regular source of livelihood; a vocation." Similarly, Merriam-Webster's Collegiate Dictionary 804 (10th ed. 1994) defines occupation as "the principal business of one's life; VOCATION."
 
698 So. 2d at 831.

We conclude from our review of Lecks and Adelberg that the Florida Supreme Court does not consider the term "any occupation"  [*12]  to be synonymous with the term "any employment." Accordingly, we cannot accept the contention advanced by Union Fidelity that the ability to do part-time work, as a matter of law, demonstrates Strama's ability to engage in an occupation.

We agree with Strama that the definition of occupation is, on the facts of this case, ambiguous. See DEC Elec., Inc., 558 So. 2d at 428. In reaching this conclusion, we have considered the materials and evidence adduced during discovery in this case. We conclude that the insurance company's statements render the phrase "any occupation" as used within the policy ambiguous, and certainly do not support a conclusion that the term is synonymous with "any gainful employment."

In sum, we hold that the trial court erred by applying workers' compensation law to a contract definition of total disability, and further by failing to accord proper treatment to ambiguous language in the policy.

REVERSED and REMANDED.
 
BARFIELD and PADOVANO, JJ., concur.


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2001 Fla. App. LEXIS 4036,*;782 So. 2d 489;
26 Fla. L. Weekly D 849
KEITH S. SAMUELS and CONSTANCE R. JONES-SAMUELS, Appellants, v. KING MOTOR COMPANY OF FORT LAUDERDALE, Appellee.
CASE NO. 4D00-725
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
782 So. 2d 489;2001 Fla. App. LEXIS 4036;26 Fla. L. Weekly D 849
  March 28, 2001, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication April 25, 2001.
  PRIOR HISTORY:   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John A, Miller, Judge; L.T. Case No. 98-18236 (07).
DISPOSITION:   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
COUNSEL:   Jerard C. Heller, Fort Lauderdale, for appellants.
 
Bonnie S. Satterfield of Bonnie S. Satterfield P.A., Coral Springs, for appellee.
JUDGES:   GUNTHER, J. POLEN and STEVENSON, JJ., concur.
OPINIONBY:   GUNTHER
OPINION:  
 
GUNTHER, J.

The Plaintiffs, Keith Samuels and Constance Jones-Samuels, appeal the trial court's order dismissing with prejudice count II (misleading and false advertising), count III (fraud in the inducement and fraud in the performance), and count IV (deceptive and unfair trade practice) of their second amended complaint. They also appeal the trial court's dismissal of count I (breach of contract) for lack of subject matter jurisdiction (amount in controversy below $ 15,000) with leave to re-file in county court. We affirm in part, reverse in part, and remand.

The Plaintiffs alleged that in mid-1998, they went to King Motor Company of Fort Lauderdale to buy a new vehicle. They signed a buyers order containing  [*2]  the following language:

On a credit transaction the purchaser(s) offer is not accepted until (A) signed by a King manager, (B) assigned and acceptable by a Bank or Finance Company, and (C) purchaser(s) and dealer have signed an installment sales contract. This agreement is valid for 5 days from date of signature for vehicles in stock or from notice of vehicle availability when factory ordered.
 
The buyers order also contained the following provisions:

(2) Manufacturer has reserved the right to change the price to Dealer of new motor vehicles without notice. In the event the price to Dealer of new motor vehicles of the series and body type ordered hereunder is changed by Manufacturer prior to delivery of the new motor vehicle ordered hereunder to Purchaser, Dealer reserves the right to change the price of unit of such motor vehicle to purchaser accordingly. If such price of unit is increased by Dealer, Purchaser may, if dissatisfied there with [sic] cancel this order in which event if a used motor vehicle has been traded in as a part of the consideration for such new motor vehicle, such used motor vehicle shall be returned to Purchaser upon payment of a reasonable charge for  [*3]  repairs (if any) or, if such used motor vehicle has been previously sold by Dealer, the amount received therefor, less a selling commission of 15% shall be returned to purchaser.

. . .

(4) If a used motor vehicle has been traded in as part of the consideration herein, the Purchaser hereby expressly gives consent to the Dealer that the Dealer may, at any time, sell said used vehicle. In the event the Order is cancelled under the terms and provisions of this agreement subsequent to the sale of the trade-in, Buyer shall receive from Dealer an amount as provided in paragraph 2 above.

In the general allegations of the complaint, the Plaintiffs claimed that the buyers order did not constitute a contract. According to the Plaintiffs, King Motor told them that the buyers order would constitute a binding contract and obligate them under the terms of the contract if and only if every contingency occurred. Specifically, based upon King Motor's representations and the language of the buyers order itself, the Plaintiffs did not believe King Motor had the right to dispose of their trade-in vehicle until the buyers order became a binding contract.

In reliance on King Motor's representations as  [*4]  well as the terms of the buyers order, the Plaintiffs traded in their used vehicle, accepted delivery of the new vehicle, and executed a vehicle retail installment contract providing, among other things, that the Plaintiffs' downpayment would be $ 2250 allowed for the trade-in vehicle. King Motor later told them they were disapproved for financing unless they made an additional downpayment of $ 3000. The Plaintiffs declined, returned the new vehicle to King Motor, and demanded return of their trade-in vehicle, but were told it could not be located. King Motor has continued to refuse to return their trade-in vehicle to them or offer them anything of value in lieu of the trade-in's return.

The Plaintiffs alleged that at no time did the necessary contingencies in the buyers order occur. Specifically, King Motor did not sign the buyers or installment sales contract within five days, and the buyers order was not assigned to or accepted for financing within five days. According to the Plaintiffs, because these contingencies did not occur, the buyers order did not constitute a contract.

From that premise, the Plaintiffs alleged King Motor made two false statements. One false statement was  [*5]  that the entire transaction and all obligations stated in the buyers order (specifically, the Plaintiffs giving permission to King Motor to immediately dispose of their trade-in vehicle) were contingent upon obtaining financing. According to the Plaintiffs, King Motor intended to keep the Plaintiffs' trade-in vehicle even if the contingencies did not occur, and behavior consistent with King Motor's "standard operating procedure." The other false statement was that the trade-in vehicle could not be located. According to the Plaintiffs, King Motor had to know where the trade-in vehicle was because it was still on the lot, already sold, or in the process of being sold.

Although the Plaintiffs generally alleged the buyers order did not constitute a contract, they also alleged, in the alternative, that the buyers order did constitute a contract and that King Motor breached the contract by acting as if the contingencies in the buyers order had occurred and by refusing to return their trade-in vehicle. This is the basis for count I, the breach of contract claim.

King Motor moved to dismiss with prejudice counts II through IV for failure to state a cause of action. According to King Motor,  [*6]  the buyers order was a binding contract and the terms of the buyers order allowed it to dispose of the trade-in vehicle when it was tendered to them. According to King Motor, many other reasons justified dismissing counts II through IV with prejudice, including that the Plaintiffs failed to state (and under these facts, never could state) causes of action for common law fraud, misleading and false advertising, and deceptive and unfair trade practices; that the economic loss rule barred any claims of fraud, misleading and false advertising, and deceptive and unfair trade practices; that Florida Rule of Civil Procedure 1.130(a) allowed dismissal because the Plaintiffs failed to attach the bailment agreement; and that Florida Rule of Civil Procedure 1.420(b) allowed dismissal because the Plaintiffs ignored the court's order to amend their pleading to state a cause of action by failing to correct the deficiencies apparent in their complaint. King Motor also contended that upon dismissal of counts II through IV, count I (the breach of contract claim) should be dismissed for lack of subject matter jurisdiction because the Plaintiffs' recourse was limited under the terms of the buyers order  [*7]  to the value of the trade-in vehicle, which was less than $ 15,000, the circuit court's jurisdictional limit.

Without stating a reason, the trial court dismissed with prejudice counts II through IV. Regarding count I, the trial court determined that the amount in controversy on that count, standing alone, fell below $ 15,000, the circuit court's jurisdictional threshold, and accordingly dismissed without prejudice count I for lack of subject matter jurisdiction, giving the Plaintiffs leave to re-file in county court.

We first address King Motor's argument that the buyers order was a binding contract, the terms of which allowed it to dispose of the trade-in vehicle immediately upon the Plaintiffs tendering it. A court must accept the facts alleged in a complaint and exhibits attached to the complaint as true. See Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000); Abele v. Sawyer, 750 So. 2d 70 (Fla. 4th DCA 1999). A court may not go beyond the four corners of the complaint. See Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000). Asserting inconsistent allegations in a complaint is permissible. See  [*8]  Fla. R. Civ. P. 1.110(g); Belz Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787 (Fla. 3d DCA 1998).

While occasional language in the buyers order refers to it as an "agreement," specific language in the buyers order states it did not become a binding contract until certain contingencies occurred, that is, unless, within five days, a King Motor manager signed the buyers order, the buyers order was assigned and acceptable for financing, and both parties signed an installment sales contract.
Until those things occurred the buyers order was simply an offer by the purchaser to buy a particular vehicle. The Plaintiff alleged King Motor did not sign the buyers order or an installment sales contract within five days, and the buyers order was not assigned to or accepted for financing within five days. The buyers order attached to the second amended complaint supports the Plaintiffs' allegations, at least to the extent it reflects it was not signed by any representative of King Motor.

King Motor's argument would require the court to disregard the Plaintiffs' allegations the buyers order is not a contract and the terms of the buyers order itself to  [*9]  conclude the buyers order was in fact a binding contract, the terms of which (notably, provision (4)) allowed it to immediately dispose of the Plaintiffs' trade-in vehicle. Because a court must accept as true the Plaintiffs' allegations and may not go beyond the four corners of a complaint in reviewing a motion to dismiss, King Motor's argument is improper. See Barbado, 758 So. 2d at 1174.

We next address the argument that the Plaintiffs failed to state a claim in counts II through IV.
 "'To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.'" W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297, 300 (Fla. 1st DCA 1999) (quoting Perry v. Cosgrove, 464 So. 2d 664, 665 (Fla. 2d DCA 1985)). "Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review." Id. If a complaint does not state a cause of action, the opportunity to amend a complaint should be liberally given, unless it is apparent  [*10]  the pleading cannot be amended to state a cause of action. See Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4th DCA 1999).
 

First we address count II, the Plaintiffs' claims for misleading and false advertising. A cause of action for misleading advertising is defined under section 817.41, Florida Statutes (1997). Section 817.41 provides as follows:

(1) It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.

. . .

(6) Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorney's fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law.
 
§ 817.41(1), (6), Fla. Stat. (1997). "Misleading advertising" is defined as follows:

(5) The phrase "misleading  [*11]  advertising" includes any statements made, or disseminated, in oral, written, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.
 
§ 817.40(5), Fla. Stat. (1997).

Here, the Plaintiffs have alleged that they are a portion of the general public and that King Motor told them the buyers order and all obligations in the buyers order, including the Plaintiffs giving King Motor permission to dispose of their trade-in vehicle, were contingent upon obtaining financing. This, according to the Plaintiffs, was misleading because King Motor intended to hold them to the obligations arising from the buyers order, that is, dispose of the trade-in vehicle, without the Plaintiffs first obtaining financing.  [*12]  But it is not enough to allege a misleading or untrue statement made to the general public or a portion of the general public. Under section 817.40(5), the Plaintiffs must also allege the misleading or untrue statement was made with "the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever . . . or to induce the public to enter into any obligation relating to such property or services." Here, the Plaintiffs did not allege that the misleading statement was made with the purpose of selling or disposing of any property. Rather, according to the implications inherent in the allegations, King Motor made the alleged misleading statement for the purpose of inducing the Plaintiffs to give possession of their trade-in vehicle to them. That King Motor might have intended to sell the trade-in vehicle to a third party is unavailing because the "selling" or "disposing" of property mentioned in section 817.40(5) must be related to the misleading statement made to the Plaintiffs. For this reason, given the basic facts of this case, it does not appear that the Plaintiffs could ever state a claim for misleading advertising  [*13]  under sections 817.40(5) and 817.41(1). Accordingly, the trial court did not err in dismissing the misleading advertising claim with prejudice. See Gladstone, 729 So. 2d at 1003-05.

Section 817.44, the false advertising statute cited in the second amended complaint, provides as follows:

(1) WHAT CONSTITUTES INTENTIONAL FALSE ADVERTISING.--- It is unlawful to offer for sale or to issue invitations for offers for the sale of any property, real or personal, tangible or intangible, or any services, professional or otherwise, by placing or causing to be placed before the general public, by any means whatever, an advertisement describing such property or services as part of a plan or scheme with the intent not to sell such property or services so advertised, or with the intent not to sell such property or services at the price at which it was represented in the advertisement to be available for purchase by any member of the general public.

(2) PRESUMPTION OF VIOLATION.--- The failure to sell any article or a class of articles advertised, or the refusal to sell at the price at which it was advertised to be available for purchase, shall create a rebuttable presumption of  [*14]  an intent to violate this section.
 
§ 817.44(1)-(2), Fla. Stat. (1997).

The Plaintiffs have waived any appellate argument that the trial court erred in dismissing their false advertising claim by failing to present on appeal any clear argument that the complaint states a cause of action under section 817.44. Notwithstanding that, the Plaintiffs alleged King Motor made the following two false statements: (a) the buyers order and all obligations in the buyers order (specifically, that the Plaintiffs gave permission to King Motor to dispose of their trade-in vehicle) were contingent upon obtaining financing, even though King Motor intended to hold the Plaintiffs to the obligations arising from the buyers order (i.e., dispose of the trade-in vehicle) without them obtaining financing; and (b) the trade-in vehicle could not be located, even though King Motor had to have had some idea where the trade-in vehicle was. The Plaintiffs contended that these false statements constituted "false advertising," in that they constituted "an offer for sale of property and/or an invitation for an offer for sale of property as part of a plan or scheme not to sell the property  [*15]  pursuant to the terms stated in said Buyers Order." But this is not what section 817.44 prohibits. Section 817.44 prohibits an advertisement offering to sell property when the proposed seller has no intention of either actually selling the advertised property or of selling the property for the price advertised. See § 817.44(1). Thus, the Plaintiffs have not stated a cause of action for false advertising under section 817.44.

Moreover, the Plaintiffs "readily concede" that the buyers order is not "advertising" as the term is generally used. They attempt to argue that the buyers order is "advertising" as defined by statute, but the only definition they cite is the definition of "misleading advertising" under section 817.40(5). The definition of "misleading advertising" under section 817.40(5) has no application to the term "false advertising" used in section 817.44. Compare § 817.40 with § 817.44. Because the Plaintiffs offer no further argument why the buyers order should constitute advertising under section 817.44, it appears the Plaintiffs could not state a cause of action for false advertising under section 817.44. Accordingly, any allegations pertaining to false  [*16]  advertising were properly dismissed with prejudice for failure to state a cause of action.

We next consider whether count III states a claim for common law fraud. To state a cause of action for fraud in the inducement, the Plaintiff must allege (a) a misrepresentation of a material fact; (b) that the representor of the misrepresentation knew or should have known of the statement's falsity; (c) that the representor intended that the representation would induce another to rely and act on it; and (d) that the plaintiff suffered injury in justifiable reliance on the representation. See Hillcrest Pac. Corp. v. Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999).

In count III, the Plaintiffs simply reaverred allegations from previous paragraphs. They included the general allegations of the second amended complaint, but they failed to reaver the allegations regarding the false statements King Motor made. The Plaintiffs admit that count III contains only allegations amounting to breach of contract, but they contend that this was an oversight and they should be allowed to amend their complaint. We agree.

Looking at the second amended complaint as a whole, there are allegations  [*17]  that would satisfy the elements of fraud in the inducement. The Plaintiff alleged King Motor told them they would not be bound by the terms of the buyers order, which King Motor knew to be a false statement because it intended to immediately dispose of the trade-in vehicle pursuant to the terms of the buyers order, and that the purpose of telling them this false statement was to induce them to sign the buyers order, buy a new vehicle, and tender their trade-in vehicle. The Plaintiffs also alleged that as a result of their reliance on King Motor's misrepresentation, they were damaged. If these allegations were specifically realleged in reference to a count for fraud in the inducement, they would be sufficient to state a claim for fraud in the inducement. See id. at 1055. Moreover, contrary to King Motor's position, the economic loss rule does not bar the Plaintiffs' fraud in the inducement claim because fraudulent inducement is a tort independent from any underlying contract. See HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238 (Fla. 1996). Thus, while it may have been technically proper for the trial court to dismiss count III, the  [*18]  trial court abused its discretion by dismissing it with prejudice and not allowing the Plaintiffs the opportunity to amend their complaint. See Gladstone, 729 So. 2d at 1003-05.

The Plaintiffs argue they have also sufficiently stated a cause of action for fraud in the performance. By failing to explain why their allegations are sufficient to state a claim for fraud in the performance, the Plaintiffs have fallen short of their burden on appeal to show "clearly, definitely, and fully" how the trial court reversibly erred. E & I, Inc. v. Excavators, Inc., 697 So. 2d 545 (Fla. 4th DCA 1997).

Notwithstanding that, because fraud in the performance cases involve misrepresentations related to the breaching party's performance of a contract and thus fraud in the performance is inextricably linked to breach of contract, the economic loss rule bars the Plaintiffs' cause of action for fraud in the performance. See La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710 (Fla. 5th DCA 1998); Bankers Risk Mgmt. Servs., Inc. v. Av-Med Managed Care, Inc., 697 So. 2d 158 (Fla. 2d DCA 1997). In so ruling, we reject the Plaintiffs'  [*19]  argument that language in Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999), indicates the economic loss rule cannot, in any circumstance, apply in any case except a products liability action. Thus, the trial court did not err in dismissing with prejudice the Plaintiffs' claim for fraud in the performance.
 
We next consider whether the Plaintiffs stated a claim in count IV under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). FDUTPA provides in pertinent part as follows:

501.204 Unlawful acts and practices.    

(1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

(2) It is the intent of the Legislature that, in construing subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1).

501.211 Other individual remedies.    

(1) Without regard to any other remedy or relief to which a person is entitled, anyone  [*20]  aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.

(2) In any individual action brought by a consumer who has suffered a loss as a result of a violation of this part, such consumer may recover actual damages, plus attorney's fees and court costs as provided in s. 501.2105; however, no damages, fees, or costs shall be recoverable under this section against a retailer who has, in good faith, engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.
 
§§ 501.204, 501.211(1)-(2), Fla. Stat. (1997).

While the Legislature does not define what "an unfair or deceptive act" is, it has mandated that FDUTPA is to be liberally construed. See § 501.202, Fla. Stat. (1997). The Legislature has also specifically stated that great weight should be given to federal cases interpreting the federal counterpart of this Act. See § 501.204(2); Urling v. Helms Exterminators, Inc., 468 So. 2d 451 (Fla. 1st DCA 1985).  [*21]  An unfair practice under the federal statute has been defined as one that "offends established public policy" and one that is "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Spiegel, Inc. v. Fed. Trade Comm'n, 540 F.2d 287, 293 (7th Cir. 1976). Florida courts have held that a plaintiff who alleges that a dealership intentionally concealed he was entering a lease agreement rather than a sales agreement and that as a consequence he was deprived of his trade-in vehicle states a cause of action under FDUPTA. See Cummings v. Warren Henry Motors, Inc., 648 So. 2d 1230 (Fla. 4th DCA 1995). Moreover, the economic loss rule does not bar a FDUTPA claim. See Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So. 2d 602 (Fla. 2d DCA 1997); see also Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So. 2d 1219, 1222, 1223 (Fla. 1999) (economic loss rule does not bar statutory causes of action, particularly when the statutory language providing the cause of action makes clear the statutory remedy is in addition to other available remedies).

As with the Plaintiffs' count for common  [*22]  law fraud, it appears that the Plaintiffs' FDUTPA count inadvertently failed to reallege the general allegations regarding the false statements they claim King Motor made. Because of that, the allegations contained in count IV failed to state a cause of action under FDUTPA. Considering the sum of all allegations in the Plaintiffs' second amended complaint, however, the Plaintiffs could state a cause of action under FDUTPA.

The Plaintiffs alleged King Motor represented to them that they were not entering into a contract, induced them to sign the buyers order, and then immediately acted as if by signing the buyers order, the Plaintiffs had given them permission to immediately dispose of their trade-in vehicle, even though the contingencies that transformed the buyers order into a contract never occurred. According to the Plaintiffs, King Motor never once offered to compensate the Plaintiffs for the disposal of their trade-in vehicle. This behavior offends public policy and is immoral, unethical, and substantially injurious to consumers situated similarly to the Plaintiffs, who are left without a vehicle and likely little ability to get one because they no longer have a trade-in vehicle  [*23]  as a downpayment and cannot secure affordable financing. Thus, given the sum of the allegations in the second amended complaint and taking them as true, the Plaintiffs could state a cause of action under FDUTPA. See § 501.204, Fla. Stat. (1997); Delgado, 693 So. 2d at 611; Cummings, 648 So. 2d at 1233. Accordingly, the court erred in failing to give the Plaintiffs leave to amend their FDUTPA claim and instead dismissing it with prejudice. See Gladstone, 729 So. 2d at 1003-05.

We turn next to the alternative theories of dismissal King Motor raised in its motion to dismiss and on appeal. King Motor contends that the second amended complaint was properly dismissed under Florida Rule of Civil Procedure 1.130 because the Plaintiffs failed to attach a copy of the bailment agreement the Plaintiffs signed when they accepted delivery of the new vehicle. We disagree.


Florida Rule of Civil Procedure 1.130(a) provides that all contracts or documents "upon which action may be brought . . . shall be incorporated in or attached to the pleading." When a party brings an action based upon a contract and fails to  [*24]  attach a necessary exhibit under Rule 1.130(a), the opposing party may attack the failure to attach a necessary exhibit through a motion to dismiss. See Safeco Ins. Co. v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th DCA 1981). Where a complaint is based on a written instrument, the complaint "does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in" the complaint. Id.


The bailment agreement, which King Motor attached to its motion to dismiss, states that the Plaintiffs possessed the new vehicle on loan only and that if financing fell through, the Plaintiffs were required to return it to King Motor and pay a certain amount for the privilege of using it. On its face, the bailment agreement is not relevant to whether the buyers order constituted a contract or whether King Motor had the authority to immediately sell or otherwise dispose of the Plaintiffs' trade-in vehicle, which are the issues upon which the Plaintiffs' complaint focuses. By attaching the bailment agreement to its motion to dismiss and arguing it was integral to disposition of this case when on its face the bailment agreement is unrelated to  [*25]  the Plaintiffs' complaint, King Motor improperly attempted to interject issues outside the four corners of the complaint.
 
See Barbado, 758 So. 2d at 1174; Mancher v. Seminole Tribe of Fla., Inc., 708 So. 2d 327 (Fla. 4th DCA 1998). Moreover, because the Plaintiffs' complaint focuses only on the propriety of King Motor's actions in disposing of the trade-in vehicle and not whether King Motor could force the Plaintiffs to return the new vehicle and pay a certain rate for using it, Rule 1.130(a) did not require the Plaintiffs to attach the bailment agreement to their complaint.

King Motor also contends that the Plaintiffs complaint should be dismissed under Florida Rule of Civil Procedure 1.420(b) because the Plaintiffs failed to amend their complaint to state a cause of action after the trial court dismissed prior complaints for failure to state claims and granted them leave to amend. Florida Rule of Civil Procedure 1.420(b) provides, "Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court." Dismissing a complaint as a sanction under Rule  [*26]  1.420(b) for failure to comply with orders of the court to amend a complaint to state a cause of action is generally unnecessary, as dismissal is always available where the complaint does not state a cause of action. See Cummings, 648 So. 2d at 1232. Notwithstanding that, dismissal as a sanction under Rule 1.420(b) is erroneous where the trial court fails to make an express written finding of a party's willful refusal to obey the court order or contumacious disregard of the court's order. See id.

Here, the trial court made no finding of willful refusal or contumacious disregard. Accordingly, the trial court could not have properly dismissed the second amended complaint as a sanction under Rule 1.420(b). See Cummings, 648 So. 2d at 1232. Moreover, dismissal with prejudice was improper because the Plaintiffs either did state causes of action or could, with some amendment, state causes of action. See id.

King Motor further contends that courts are justified to dismiss a complaint with prejudice simply because a plaintiff has had three ineffective attempts to state a cause of action. This is incorrect.

"Leave of court shall be freely given  [*27]  when justice so requires." Fla. R. Civ. P. 1.190(a). While the number of times a plaintiff has been allowed leave to amend may impact whether justice requires granting leave to amend, in the sense that a court should consider the effect defending against frivolous litigation would have on a defendant, see Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992), considerations of justice do not revolve solely around the impact on a defendant of extending litigation.
As this Court has stated, "A claim should not be dismissed with prejudice 'without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action.'" Gladstone, 729 So. 2d at 1003 (quoting Kairalla v. John D. and Catherine T. MacArthur Found., 534 So. 2d 774, 775 (Fla. 4th DCA 1988)).


Here, the Plaintiffs have amended their complaint only twice, not the four to ten times sometimes seen in other cases. See Gladstone, 729 So. 2d at 1004; Kohn, 611 So. 2d at 539. The Plaintiffs have not abused the pleading process. Moreover, it appears the  [*28]  Plaintiffs either have, or could with minor change, state a cause of action upon the facts they have alleged.

The Plaintiffs' interest in resolving this case on the merits outweighs any "time, effort, energy, and expense" King Motor might incur by continuing to defend itself at this juncture. Kohn, 611 So. 2d at 539. Accordingly, the trial court would not have been justified in dismissing the second amended complaint with prejudice simply because the Plaintiffs have tried three times to state a cause of action.
 
Finally, we address the trial court's dismissal of count I, the Plaintiffs' breach of contract claim. The trial court apparently reasoned that standing alone, without all other counts of the second amended complaint, the breach of contract count did not reach the $ 15,000 amount in controversy necessary to confer subject matter jurisdiction on the circuit court. This Court has determined that the trial court erred in dismissing with prejudice the Plaintiffs' claims for fraud in the inducement and deceptive and unfair trade practices. Upon remand, if the Plaintiffs file a third amended complaint, they are free to include a count for breach of contract,  [*29]  if they so choose, at which time the trial court can reconsider its jurisdictional ruling.

We affirm the trial court's order to the extent it dismisses with prejudice the Plaintiffs' claims for misleading advertising, false advertising, and fraud in the performance. In all other respects, the trial court's order is reversed, and we remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
 
POLEN and STEVENSON, JJ., concur.


 
 
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2001 Fla. App. LEXIS 23,*;788 So. 2d 992;
26 Fla. L. Weekly D 111
STATE FARM FIRE AND CASUALTY COMPANY, Appellant/Cross-Appellee, v. CHARLES B. HIGGINS, and CHERYL L. INGALLS, f/k/a CHERYL L. STEELE, Appellees/Cross-Appellants, and MAUREEN BRADLEY, f/k/a MAUREEN HIGGINS. Appellee.
CASE NO. 4D99-2989
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
788 So. 2d 992;2001 Fla. App. LEXIS 23;26 Fla. L. Weekly D 111
     January 3, 2001, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication February 13, 2001.
 
Rehearing Granted February 13, 2001. Review granted by Higgins v. State Farm Fire & Cas. Co., 794 So. 2d 604, 2001 Fla. LEXIS 1813 (Fla., 2001)
Approved by Higgins v. State Farm Fire & Cas. Co., 2004 Fla. LEXIS 1552 (Fla., Sept. 30, 2004)
  PRIOR HISTORY:   Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jorge Labarga, Judge; L.T. Case No. CL 97-3309 AB.
COUNSEL:   Elizabeth K. Russo of Russo Parrish Appellate Firm, Miami, and Sachs, Sax & Klein, P.A., Boca Raton, for Appellant/Cross-Appellee.
 
John P. Wiederhold of Wiederhold, Moses & Rubin, P.A., West Palm Beach, for Appellee/Cross-Appellant-Charles B. Higgins.
 
Theodore A. Deckert of Law Office of Theodore A. Deckert, P.A., and Joseph K. Still, Jr., P.A., West Palm Beach, for Appellee/Cross-Appellant-Cheryl L. Ingalls, f/k/a Cheryl L. Steele.
JUDGES:   GROSS, J., WARNER, C.J., DELL, GUNTHER, STONE, POLEN, FARMER, KLEIN, STEVENSON, SHAHOOD, TAYLOR and HAZOURI, JJ., concur.
OPINIONBY:   GROSS
OPINION:  
 
EN BANC
 
GROSS, J.

The main issues in this case concern the viability of a declaratory judgment action on the issue of insurance coverage when the underlying negligence lawsuit remains pending. We hold in this case that a declaratory judgment is proper to determine the existence of insurance coverage, a ruling that is consistent with the modern trend according  [*2]  broad scope to the Declaratory Judgments Act, Chapter 86, Florida Statutes (2000).

On July 2, 1995, Cheryl Ingalls filed a complaint against Charles Higgins, seeking damages for the intentional torts of assault and battery. Having been a legal secretary for almost twenty years, Ingalls typed the complaint. She worked for the lawyer who filed the lawsuit on her behalf.

The assault and battery complaint alleged that Higgins had "willfully, intentionally, and with malice" committed the torts "in an effort to hurt and cripple" Ingalls. Typical of the specific factual allegations was the following:

Without warning, provocation, or reason, [Higgins] grabbed [Ingalls's] wrist and threw her against the stairs in the home. As [Ingalls] came up from the stairs he grabbed her wrist again and threw her across the room where she struck a couch and fell on the floor.

At the time Ingalls's lawsuit was filed, Higgins and his ex-wife Maureen Bradley owned several properties covered by State Farm homeowners policies. All the policies provided coverage for bodily injuries "caused by an occurrence." The policies defined an "occurrence" as "an accident, including exposure to conditions, which  [*3]  results in: a. bodily injury; or b. property damage; during the policy period."

An exclusion in each policy provided that there was no coverage for bodily injury "which is either expected or intended by an insured" or for bodily injury "to any person . . . which is the result of willful and malicious acts of an insured[.]"

On January 29, 1997, Ingalls served an amended complaint adding a negligence claim against Higgins's former wife, Maureen Bradley. The amended complaint alleged that during an altercation, Higgins "violently threatened, touched and injured" Ingalls.

In response to the amended complaint, State Farm provided a defense under a reservation of rights and filed a declaratory judgment action naming Higgins, Bradley, and Ingalls as defendants. The action sought a determination of fact issues pertaining to coverage and a declaratory decree as to whether State Farm owed a duty to defend and indemnify Higgins under the policies.

The two actions were consolidated and Ingalls reached a settlement with Maureen Bradley.

Ingalls then filed her second amended complaint against Higgins, which alleged only a cause of action for negligence. The pleading eliminated all the  [*4]  specific description of an intentional tort contained in the earlier complaints. It alleged simply that
 
HIGGINS came upon the [property] while . . . INGALLS and BRADLEY were there. At that time, the Defendant, HIGGINS, began to argue with BRADLEY. In the course of this altercation, Defendant, HIGGINS, negligently injured Plaintiff, INGALLS.

In response to this last amendment, State Farm amended its complaint for declaratory relief.

The declaratory relief action proceeded to jury trial. The jury made the factual findings that Higgins intended or expected to cause the injuries for which Ingalls was seeking damages and that Higgins "willfully and maliciously" caused those injuries.

In response to Higgins's and Ingalls's post-trial motions, the trial judge granted a new trial finding that certain "inflammatory remarks" by State Farm's lawyer concerning Ingalls's settlement with Bradley were "fatally prejudicial" to the defendants' case. State Farm appealed the order granting a new trial and Higgins and Ingalls cross-appealed on numerous points.

I

Both Ingalls and Higgins argue that the trial court should have granted their motions for directed verdict on the issue of  [*5]  State Farm's duty to defend the action against Higgins, its insured. We agree.

It is clear that a liability insurer's obligation to defend a claim made against its insured must be determined solely from the allegations in the complaint. See State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1077 n.3 (Fla. 1998); Nat'l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So. 2d 533, 536 (Fla. 1977); Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810, 812 (Fla. 1st DCA 1985). The duty to defend arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage. See McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 758 So. 2d 692, 695 (Fla. 4th DCA 1999). An amended complaint supersedes an earlier pleading where it "does not express an intention to save any portion of the original pleading." Baron Oil, 470 So. 2d at 815. When an amended complaint supersedes an earlier one, the allegations of the amended complaint control the duty to defend. See id.; C.A. Fielland, Inc. v. Fid. & Cas. Co. of N.Y., 297 So. 2d 122, 127 (Fla. 2d DCA 1974).  [*6]  

The actual facts of the situation are not pertinent; "the trial court is restricted to the allegations of the complaint, regardless of what the defendant and others say actually happened." Marr Invs., Inc. v. Greco, 621 So. 2d 447, 449 (Fla. 4th DCA 1993) (citation omitted). Thus, the duty to defend is broader than the duty to indemnify, in the sense that the insurer must defend even if the facts alleged are actually untrue or the legal theories unsound. See West Am. Ins. Co. v. Silverman, 378 So. 2d 28, 30 (Fla. 4th DCA 1979); Grissom v. Commercial Union Ins. Co., 610 So. 2d 1299, 1306-07 (Fla. 1st DCA 1992). "Once the insurer's duty to defend arises, it continues throughout the case unless it is made to appear by the pleadings that the claims giving rise to coverage have been eliminated from the suit." Baron Oil, 470 So. 2d at 815.

Ingalls's second amended complaint alleged a cause of action for negligence. If one looks only to the four corners of the pleading, as the law requires, the cause of action fairly and potentially falls within the coverage of the policy. The trial court erred in failing to grant a directed  [*7]  verdict on the issue of State Farm's duty to defend.

II

Both Higgins and Ingalls argue that the declaratory judgment action was not a proper vehicle to decide whether Higgins's conduct was excluded from coverage under the policy. As authority, both briefs cite to Columbia Casualty Co. v. Zimmerman, 62 So. 2d 338 (Fla. 1952), and Smith v. Milwaukee Insurance Co., 197 So. 2d 548 (Fla. 4th DCA 1967). Both parties quote this court's opinion in Smith, where we noted "the use of declaratory proceedings is not available where the object of the proceedings is to try disputed questions of fact as a determinative issue rather than to seek a construction of definite stated rights, status, or other relations." 197 So. 2d at 550 (citing Columbia Cas., 62 So. 2d 338).

The availability of a declaratory judgment to try disputed questions of fact is one of the most difficult areas of Florida law. To arrive at the proper resolution of this issue, as well as the related issue discussed in Point III, requires a court to step back and view the evolution of the declaratory judgment remedy through Florida legal history.

The seminal  [*8]  case on this issue is the 1952 decision of Columbia Casualty. In that case, Mary Yates drove a car owned by Martin and Erma Wiltse and collided with a bus, causing injury to the bus driver and ten passengers. Columbia Cas., 62 So. 2d at 338. Several of the injured parties sued Yates and Martin Wiltse. See id. Yates and her insurance company made demand on Columbia Casualty Company, Wiltse's insurer, to defend the suits. See id. Columbia Casualty declined to defend Yates, because her conduct fell under an exclusion in the policy. As the supreme court explained:

The policy provided, in effect, that if the automobile covered by the policy is being driven by someone without the knowledge and consent of the insured, the insurance company is not liable to the insured and is not required to defend under the policy. This provision is plain and unambiguous.
 
62 So. 2d at 339.

Yates and her insurer filed a declaratory judgment action to determine Columbia Casualty's obligation to defend the pending and potential future suits against Yates. See id. The trial court granted a motion to dismiss the suit for failure to state a cause of action under  [*9]  the declaratory judgment statute. See id.

The supreme court affirmed the dismissal. It considered the pivotal issue to be "whether or not Mary Yates was driving the automobile with the knowledge and consent of the owners, or either of them" so as to fall outside the exclusion in the policy. Id. The supreme court observed that the exclusion in the insurance policy was "plain and unambiguous" and that the validity or construction of the policy was not at issue. Id. The court characterized the question of whether the automobile was being driven with the knowledge and consent of the insured as "a question of fact to be determined as any other question of fact," requiring "no construction of the insurance policy in order to determine the meaning thereof." Id.

The supreme court held that the declaratory judgment statute did not extend to cover such a case. The court reasoned:

The complaint in this case shows on its face that there is no doubt as to the meaning of the contract. The only doubt which is shown to exist is whether or not the automobile was being driven with, or without, the knowledge and consent of the insured. This is not a doubt as to the meaning of the contract  [*10]  or as to the proper interpretation of the contract. It is simply a doubt as to what will be the ultimate outcome of a consideration of the facts bearing on the question of whether or not the automobile was being driven with the knowledge and consent of the insured.
 
Id. at 340.

The court focused on the language of section 87.02, Florida Statutes (1951), which provided in pertinent part that a person who may be in doubt as to his rights under a . . . contract or other . . . instrument in writing or whose rights, status or other equitable or legal relations are affected by . . . contract . . . or other . . . instrument in writing may have determined any question of construction or validity arising under such . . . contract . . . or instrument in writing. . . .
 
Id. at 339 (emphasis supplied in original). The supreme court thus concluded that the case did not present an issue of "construction" of the insurance policy within the meaning of section 87.02. In a strong dissent, Justice Terrell n1 contended that the scope of the Declaratory Judgments Act went beyond the power to construe a written instrument  [*11]  to include those cases where a "right, status, immunity, power or privilege" was at stake. Id. at 341.

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n1 In Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. 2d 808, 809 (1946), Justice Terrell "explicated in great detail the purpose of the Declaratory Judgment Act." Lambert v. Justus, 335 So. 2d 818, 820 (Fla. 1976). Speaking for the majority in Ready, Justice Terrell wrote:

Viewed in its proper perspective, the Declaratory Judgments Act is nothing more than a legislative attempt to extend procedural remedies to comprehend relief in cases where technical or social advances have tended to obscure or place in doubt one's rights, immunities, status or privileges. It should be construed with this objective in view, but it should not be permitted to foster frivolous or useless litigation to answer abstract questions, to satisfy idle curiosity, go on a fishing expedition or to give judgments that serve no useful purpose. It should be construed to aid those who have a meritorious cause rather than to provide a way of escape for those who would be adversely affected. There is no reason whatever why the highway to justice should be strewn with hurdles and pitfalls that make one who secures it wonder if the 'game is worth the candle.'
 
24 So. 2d at 809.
 

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Columbia Casualty did not acknowledge other portions of the declaratory judgment act which might have supported a broader interpretation of its scope in reaching fact issues. The wording of the declaratory judgment statute in force at the time Columbia Casualty was decided is similar to the present version of the statute found at Chapter 86, Florida Statutes (2000). For example, the 1951 version of the statute provided that circuit courts may render declaratory decrees, judgments or orders as to the existence, or nonexistence (1) of any immunity, power, pr
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2000 Fla. App. LEXIS 9419,*;766 So. 2d 1089;
42 U.C.C. Rep. Serv. 2d (Callaghan) 751;25 Fla. L. Weekly D 1761
ROGELIO PENAGOS, Appellant, vs. CAPITAL BANK Appellee.
CASE NO. 3D99-667
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
766 So. 2d 1089;2000 Fla. App. LEXIS 9419;42 U.C.C. Rep. Serv. 2d (Callaghan) 751;25 Fla. L. Weekly D 1761
 July 26, 2000, Opinion Filed
  PRIOR HISTORY:    [*1]  An appeal from the Circuit Court for Dade County, Jon L. Gordon, Judge. LOWER TRIBUNAL NO. 95-2017.
DISPOSITION:   Reversed and remanded.
COUNSEL:   Michael B. Solomon; Mike O'Brien, for appellant.
 
Akerman, Senterfitt & Eidson, P.A., and Oscar A. Sanchez and Laura Fernandez, for appellee.
JUDGES:   Before COPE, and SORONDO, JJ., and NESBITT, Senior Judge.
OPINIONBY:   COPE
OPINION:  

COPE, J.

The main question before us is when the statute of limitations begins to run where there has been nonpayment of a certificate of deposit. We conclude that it begins to run upon the date of written demand by the depositor, after the certificate has matured. We therefore reverse the summary judgment which held the suit to be time-barred.
 
I.

In September 1988, plaintiff-appellant Rogelio Penagos opened a certificate of deposit at defendant-appellee Capital Bank. The maturity date was December 27, 1988. After maturity plaintiff inquired periodically about the funds, and was assured that they would be forthcoming, but he was never paid. n1 On November 30, 1991, plaintiff made the first of two written demands for payment of the certificate  [*2]  of deposit. In February 1995, he filed suit.

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n1 For present purposes we accept plaintiff's version of the facts, as he is the non-moving party on the Bank's motion for summary judgment.
 

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The Bank moved for summary judgment, contending that the five-year period for an obligation founded on a written instrument, see § 95.11(2)(b), Fla. Stat. (1987), had expired because suit was filed more than five years after the 1988 maturity date of the certificate of deposit. The trial court agreed and entered summary judgment in the Bank's favor. Plaintiff has appealed.

The relevant version of the Uniform Commercial Code ("UCC") states:

A cause of action against the obligor of a demand or time certificate of deposit accrues upon demand, but demand on a time certificate may not be made until on or after the date of maturity.
 
§ 673.122(2), Fla. Stat. (1987). n2 Contrary to the Bank's argument, the statute of limitations did not begin to run on the maturity date, but  [*3]  instead began to run on the date of demand. See id.; see also Landreth v. First National Bank of Cleburne County, 45 F.3d 267, 270 (8th Cir. 1995); Edelmann v. Chase Manhattan Bank, N.A., 861 F.2d 1291, 1301-02 (1st Cir. 1988); Garcia v. Chase Manhattan Bank, N.A., 735 F.2d 645, 648 (2d Cir. 1984); Yahn & McDonnell, Inc. v. Farmers Bank, 708 F.2d 104, 107 (3d Cir. 1983); Pagano v. United Jersey Bank, 276 N.J. Super. 489, 648 A.2d 269, 272 (N.J. Super. Ct. App. Div. 1994), affirmed, 143 N.J. 220, 670 A.2d 509 (N.J. 1996).

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n2 Repealed by ch. 92-82, § 1, Laws of Fla., effective Jan. 1, 1993. Id. § 62. The legislature substituted § 673.1181, Fla. Stat. (Supp. 1992), which states, "Chapter 95 governs when an action to enforce an obligation, duty, or right arising under this chapter must be commenced." There is no indication in chapter 92-82 that the change in the UCC limitation period was intended to apply retroactively, and we therefore conclude that former section 673.122 controls here. See Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Ass'n, Inc., 581 So. 2d 1301, 1303 (Fla. 1991); Melendez v. Dreis and Krump Mfg. Co., 515 So. 2d 735, 736 (Fla. 1987); Homemakers, Inc. v. Gonzales, 400 So. 2d 965, 967 (Fla. 1981).
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*4]  

Because in analogous circumstances the Florida statute of limitations interprets "demand" to mean a written demand, see § 95.031(1), Fla. Stat. (1987), we rule consistently here and conclude that the accrual date is the date of written demand by the depositor. Because the suit was filed within five years of the written demand, the plaintiff's action is timely. We therefore need not reach plaintiff's alternative defense that the Bank had lulled him into not bringing suit because it made repeated verbal assurances that he would be paid.

Plaintiff also asserted negligence and conversion claims arising out of this same controversy. Given our conclusion that compensable injury arose only upon the Bank's refusal to pay after written demand, it follows that the same accrual date should be applied for the negligence and conversion claims. As the lawsuit was filed within the four-year statutory limitation period on those claims, see § 95.11(3), Fla. Stat. (1987), the lawsuit was timely on those claims as well.
 
II.

For the reasons stated in note 2 above, we have concluded that this transaction is governed by section 673.122,  [*5]  Florida Statutes (1987), and not the later-enacted section 673.1181, Florida Statutes (Supp. 1992). If, however, section 673.1181 controls, we still reach the same result.

Section 673.1181 states that "Chapter 95 governs when an action to enforce an obligation, duty, or right arising under this chapter [673] must be commenced."

Under section 95.031, Florida Statutes (1991), "A cause of action accrues when the last element constituting the cause of action occurs." n3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 Subsection 95.031(1) goes on in the next sentence to address the issue of "demand" in the context of a demand note, but we assume for present purposes that the demand note provision does not apply to a certificate of deposit.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

"The clear majority view is statutes of limitations do not begin to run with respect to the liability of a bank on a certificate of deposit until a demand for payment has been made." Whitlock v. Bank of Maryville, 612 S.W.2d 481, 483 (Tenn. Ct. App. 1980)  [*6]  (citations omitted); see, e.g., Yahn & McDonnell, Inc. v. Farmers Bank, 708 F.2d at 107 ("A long line of authority holds that for the purpose of determining when the limitations period begins to run, a certificate of deposit, in contrast to a simple promissory note, is not considered due until a demand for payment has been made.") (citations omitted); Elliott v. Capital City State Bank, 128 Iowa 275, 103 N.W. 777, 778 (Iowa 1905) ("The transaction is in reality for the benefit and convenience of the depositor, and while the relation of debtor and creditor exists, and the bank has the use of the money for commercial gain, it assumes no further obligation than to pay the amount received when it shall be demanded at its banking house.") (citation omitted). The majority view is logical and persuasive, and we see no reason to depart from it.
 
III.

The summary judgment is reversed and the cause remanded for further proceedings.


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2000 Fla. App. LEXIS 5226,*;758 So. 2d 1177;
25 Fla. L. Weekly D 1082
STEPHEN J. ANDERSON, Appellant, v. ROBERT T. MOSHER, Appellee.
CASE NO. 4D99-1067
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
758 So. 2d 1177;2000 Fla. App. LEXIS 5226;25 Fla. L. Weekly D 1082
   May 3, 2000, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication May 19, 2000.
  PRIOR HISTORY:   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; J. Leonard Fleet, Judge; L.T. Case No. 93-8050 (08).
DISPOSITION:   Reversed.
COUNSEL:   William J. McPharlin of William J. McPharlin, P.A., Fort Lauderdale, for appellant.
 
John T. Mulhall, III and Michael E. Wargo of Rutherford, Mulhall & Wargo, P.A., Boca Raton, for appellee.
JUDGES:   KLEIN, J., FARMER and STEVENSON, JJ., concur.
OPINIONBY:   KLEIN
 OPINION:   KLEIN, J.

The issue in this case is whether the statute of limitations begins to run on an oral loan, payable on demand, when the loan is made, or when demand for payment is made. We hold, consistent with precedent of this court and the majority of jurisdictions deciding the issue, that the period of limitations begins to run at the time the loan is made, not when demand for payment is made, but certify conflict.

Appellee creditor has a judgment against Anderson Development Corporation in the amount of $ 77,732. When he was unable to collect the judgment, the creditor filed a motion for writ of garnishment asserting that appellant Anderson (debtor) possessed assets of the corporation. Ensuing  [*2]  discovery revealed that in 1988, debtor received $ 67,500 as a loan from the corporation. The loan was not in writing and contained no terms regarding interest or time for repayment. The corporation never made a demand for repayment of the loan prior to the garnishment proceedings, brought in November, 1995.

The debtor in the garnishment proceedings asserted that the statute of limitations had run; however, the trial court granted the creditor's motion for summary judgment, and the debtor appeals.

The parties agree that the oral loan contained no terms governing repayment and that the creditor stands in the shoes of the corporation for purposes of collecting the debt owed by debtor to the corporation. They agree that the dispositive issue is when the cause of action accrued so as to start the statute of limitations running on this loan.

In Stoudenmire v. Florida Loan Co., 117 So. 2d 500 (Fla. 1st DCA 1960), the issue was when the three year statute of limitations applicable to oral agreements begins to run. The agreement in that case involved the repurchase of stock in a corporation. The plaintiff, who was demanding that the defendant repurchase the stock, contended  [*3]  that the cause of action for breach of the oral agreement did not accrue until it became known to plaintiff that the defendant would not perform. Recognizing that the case was one of first impression, the first district followed the majority rule from Smith v. Middle States Utilities Co. of Delaware, 228 Iowa 686, 293 N.W. 59, 64 (1940), in which it was held:

Where a demand or some other act is required of a plaintiff as a condition precedent to his right to sue, 'the demand must be made in a reasonable time, and this time, unless there be some special circumstances shown, will be fixed in analogy to the statute of limitations.'

The Stoudenmire court, after citing cases from a number of other jurisdictions, held that if no demand is made for performance within the period of limitations applicable to the oral agreement in Stoudenmire, which was three years, the claim is barred unless the statute of limitations was tolled "pursuant to transactions between the parties occurring subsequent to the date of the agreement sued on." Stoudenmire, 117 So. 2d at 503. Stoudenmire, as we noted earlier, represents the majority view. See also 14 A.L.R. 4th 1385 (1982).  [*4]  

This court recently applied the rationale of Stoudenmire in a case involving oral interest-free loans with no terms for repayment. We held that under those circumstances the demand for repayment must be made in a reasonable time analogous to the statute of limitations, and, as to the loans in which the demand was beyond that period, the claims were barred. DeSouza v. DeSouza, 708 So. 2d 993 (Fla. 4th DCA 1998).

The creditor argues that we should follow Mason v. Yarmus, 483 So. 2d 832 (Fla. 2d DCA 1986), which also involved an oral loan to be repaid on demand. Although there was no written instrument, the second district relied on Uniform Commercial Code(UCC) law to the effect that "a cause of action on a note accrues... upon written demand." Id. at 833. We do not agree with Mason's reliance on the UCC because under the UCC a note is defined as a written instrument. § 673.104(2)(d), Fla. Stat. This court has held that the time for performance under the UCC for negotiable instruments is not applicable to an oral contract which does not specify a time for performance. Fleming v. Burbach Radio, Inc., 377 So. 2d 723 (Fla. 4th DCA 1979).  [*5]  

We adhere to DeSouza but certify direct conflict with Mason. Reversed.
 
FARMER and STEVENSON, JJ., concur.


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2000 Fla. App. LEXIS 4579,*;760 So. 2d 968;
25 Fla. L. Weekly D 966
ROBERT ELMORE, CYNTHIA E. GRIFFITH, Individually and as Trustee, NANCY E. DEMMERY, as Trustee, and JAMES R. HAYES, Individually and as Trustee, JAMES R. HAYES and PAMELA E. HAYES, Individually and as Trustees, Appellants, v. FLORIDA POWER & LIGHT CO., a Florida corporation, and BROWARD COUNTY, a municipality, Appellees.
CASE NO. 4D99-1618
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
760 So. 2d 968;2000 Fla. App. LEXIS 4579;25 Fla. L. Weekly D 966
   April 19, 2000, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied June 1, 2000. Released for Publication June 1, 2000.
  PRIOR HISTORY:   Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 96-10180 11.
DISPOSITION:   REVERSED and REMANDED.
COUNSEL:   Brian C. Deuschle and Christopher D. Hale of Brian C. Deuschle, Chartered, Fort Lauderdale, for appellants.
 
Michael D. Katz and Robert C. Grady of Katz, Barron, Squitero, Faust & Berman, P.A., Miami, for appellee Florida Power & Light Co.
 
Edward A. Dion, Andrew J. Meyers, and Tamara M. Scrudders, Fort Lauderdale, for appellee Broward County.
JUDGES:   POLEN, J., FARMER and HAZOURI, JJ., concur.
OPINIONBY:   POLEN
 OPINION:   POLEN, J.

Robert Elmore, Cynthia Griffith, Nancy E. Demmery, James R. Hayes, and Pamela E. Hayes (collectively "Elmore") timely appeal after the trial court granted partial final summary judgment on Counts I and II of their sixth amended complaint in favor of Broward County and Florida Power & Light ("FP&L"). The order effectively dismissed Elmore's case against Broward County and FP&L with prejudice. Elmore argues that the court erred in determining from the face of the complaint that Counts I and II were barred by the  [*2]  statute of limitations; that his excavation rights had expired; and that FP&L was released of [sic] any potential liability by virtue of its assignment of rights to Alandco, Inc. We agree on all points raised and reverse.

Elmore alleged that on December 2, 1955, he, as trustee, acquired certain lands in Broward County pursuant to a warranty deed. The lands were to be used for the benefit of FP&L and Elmore. FP&L intended to use the lands to establish a cooling lake in order to service its power plant, and Elmore intended to use the lands to quarry rock and fill.

To further these intentions, Elmore and FP&L that same day entered into a contract. The contract provided that Elmore held title to the lands in trust for himself and FP&L. FP&L reserved the right to compel Elmore to transfer title to the subject lake to it at any time. Elmore reserved for himself all title to the rock within the lake. Also pursuant to the contract, the parties agreed that, in the dredging of the lake, 50 foot strips were to be left intact so that Elmore could quarry rocks throughout the lake area. The contract provided that either party could sell all or a portion of the remaining lands, but that each  [*3]  had a right of first refusal to purchase same. On February 10, 1963, Elmore executed a Declaration of Trust memorializing the 1955 contract.

On May 21, 1984, Elmore conveyed the property surrounding the lake's rim to FP&L by special warranty deed. By its terms, the conveyance did not affect the 1963 Declaration of Trust or the 1955 contract as to the remaining lands.

Also on that date, FP&L and Elmore entered into an excavation retention agreement. The agreement provided that Elmore would hold title to the rock, stabilizer, and sand lying within the lake presently on the property, and would continue to have the right to remove same under the terms of the 1955 contract. Simultaneously, FP&L assigned all of its interest under the above Declaration of Trust to Alandco, Inc. (another defendant in Elmore's suit). Elmore consented to the assignment and released FP&L from all obligations and liability under the 1955 contract.

On May 13, 1986, Elmore and Alandco entered into a termination agreement to end the 1955 contract and Declaration of Trust. That same day, he and Alandco entered into an agreement for purchase and sale. By this agreement, both parties' interest in the lands, with  [*4]  the exception of the cooling lake that was previously conveyed to FP&L, were divided. The agreement also recognized that Elmore retained his rights to quarry and excavate rock from FP&L's lake in accordance with the excavation retention agreement.

On August 2, 1989, Alandco, with FP&L's knowledge and consent, executed the Plat of the Port 95 Commerce Park. This plat effectively dedicated Southwest 30th Avenue for use of a public road and landscape buffers. The boundary of the lands surrounding the subject lake, however, intersected the center line of Southwest 30th Avenue.

On July 25, 1996, Elmore sued Alandco, claiming that the plat interfered with his excavation, stockpiling and staging rights under the 1984 excavation retention agreement. In 1998, after having amended his complaint several times, Elmore added Broward County and FP&L as defendants; only two counts pertained to them. In Count I, Elmore alleged that, on August 2, 1989, FP&L breached the terms of the 1984 excavation retention agreement by consenting to and authorizing the use of a portion of the lands for right-of-way purposes and buffers. He alleged that he did not suffer any damages until March, 1998, when he attempted  [*5]  to exercise his excavation rights with respect to the lake property. He sought to have the court require FP&L to specifically perform the terms of the agreement, and to enjoin Broward County from any interference or obstruction with such terms. In Count II, he sought damages against Alandco and FP&L by virtue of their breach of the agreement "to the extent of the diminution of his property rights and loss of income . . . ."

Thereafter, FP&L and Broward County moved to dismiss these counts. The court dismissed them, but did not specify whether the dismissal was with prejudice. Consequently, Elmore and FP&L each filed motions for entry of partial final summary judgment as to these counts. The court then entered final partial summary judgment as to these counts. Following the denial of his motion for rehearing, Elmore appealed.
 
I.

Elmore first argues that, on its face, his complaint did not show that the statute of limitations on his cause of action against FP&L and Broward County expired. When confronted with a motion to dismiss, the court must take the allegations of the complaint as true and decide only questions of law. Connolly v. Sebeco, Inc., 89 So. 2d 482, 484 (Fla. 1956).  [*6]  

The defense of statute of limitations may be raised by a motion to dismiss where its violation appears on the face of the complaint or exhibits. Fla. R. Civ. P. 1.110(d), 1.140(b); Toledo Park Homes v. Grant, 447 So. 2d 343, 344 (Fla. 4th DCA 1984)(citation omitted).


It is undisputed that the statutes of limitations on Elmore's suit against FP&L and Broward County with respect to the 1984 excavation retention agreement are governed by sections 95.11(2)(b) and (5)(a), Florida Statutes (1997). Under section 95.11(2)(b), an action for damages for breach of a written contract must be brought within five years. § 95.11(2)(b), Fla. Stat. (1997). Under section 95.11(5)(a), a claim of specific performance of a contract must be brought within one year. § 95.11(5)(a), Fla. Stat. (1997).
In both of these statutes, the limitations period begins to run when the last element constituting the cause of action occurs. § 95.031(1), Fla. Stat. (1997).

In this case, its is undisputed that the breach occurred, if at all, in 1989. However, Elmore alleged that he did not suffer any damages flowing from the breach  [*7]  until March, 1998.

As damages are the last element for a cause of action for breach of contract, we hold that this allegation should have survived a motion to dismiss based on this ground. See Knowles v. C.I.T. Corp., 346 So. 2d 1042 (Fla. 1st DCA 1977)(holding party must plead the existence of a contract, a breach, and damages flowing from the breach to state a cause of action for breach of contract).

II.

We also hold that it is unclear from the face of the complaint as to whether Elmore's excavation rights had expired. Specifically, Elmore alleged that the 1989 plat injured Elmore's rights to the title of the rock, stabilizer, and sand in the lake. Even though the plat encroached only the lands adjacent to the lake, and not the actual lake itself, "lake" is not a defined term in the excavation retention agreement; thus, whether it includes the lands adjacent to it appears ambiguous. Construing this ambiguity against FP&L, we believe that the term "lake" could have referred to "the lake and all lands adjacent to the lake that were conveyed to FP&L" on May 21, 1984.
See New York Life Ins. Co. v. Kincaid, 136 Fla. 120, 186 So. 675, 678 (1939)  [*8]  ("It is a rule common to the construction of all written instruments that it is to be taken, in cases of doubtful meaning, against the draftsman.")(citation omitted). As such, we hold that it was premature to have dismissed the complaint on this ground.
 
III.
 
Finally, we hold that it is unclear from the face of the complaint whether in 1984, when Elmore consented to FP&L's assignment of its interest in the original Declaration of Trust to Alandco, a novation of the 1955 contract occurred. The elements of novation are the existence of a previously valid contract; an agreement to make a new contract; the intent to extinguish the original contract and obligation; and the validity of the new contract. Sink v. Abitibi-Price Sales Corp., 602 So. 2d 1313, 1316 (Fla. 4th DCA)(citation omitted), rev. denied, 613 So. 2d 1, 630 So. 2d 534, (Fla. 1992). It is unclear from our review of the complaint that FP&L intended to extinguish FPL's duty to allow Elmore to quarry rocks within the lake when the assignment took place. As such, we believe the allegations should have survived the motion to dismiss.

REVERSED and REMANDED for further proceedings.  [*9]  
 
FARMER and HAZOURI, JJ., concur.


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1999 Fla. App. LEXIS 12371,*;739 So. 2d 1288;
24 Fla. L. Weekly D 2164
FLORIDA MASTERS PACKING, INC., Appellant, v. STEVEN L. CRAIG, TRUSTEE, etc., et al., Appellees.
CASE NO. 98-2165
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
739 So. 2d 1288;1999 Fla. App. LEXIS 12371;24 Fla. L. Weekly D 2164
       September 17, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication October 5, 1999.
 PRIOR HISTORY:   Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Scott M. Kenney, Judge; L.T. Case No.97-1386- CA-13.
DISPOSITION:   AFFIRMED.
COUNSEL:   R. N. Koblegard, III, of Fee, Koblegard & DeRoss, Ft. Pierce, for appellant.
 
Glen Rafkin and Cynthia J. Hoover of Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Fort Lauderdale, for appellees.
JUDGES:   SHAHOOD, J., TAYLOR, J., and ROTHSCHILD, RONALD J., Associate Judge, concur.
OPINIONBY:   SHAHOOD
 OPINION:   SHAHOOD, J.

This is an appeal by Florida Masters Packing, Inc., plaintiff below in an action for reformation and to quiet title to a parcel of real property located in St. Lucie County. At the conclusion of plaintiff's case, appellees, defendants below, moved for an involuntary dismissal pursuant to Rule 1.420(b), Florida Rules of Civil Procedure, which the trial court granted, entering a Final Order of Dismissal With Prejudice. Appellant raises four issues on appeal. We affirm as to all issues writing only to discuss the first and third issues.

The circumstances leading to this suit for reformation first came about in 1980. At that time,  [*2]  Michael Kane and William Radke purchased a 40-acre parcel of property in St. Lucie County ("parent tract"). Three years later, they entered into negotiations to sell a portion of the parent tract ("outparcel") with William Wright. The parties contemplated that the northern boundary of the property would not go beyond a ditch located on the north end of the property. A surveyor prepared a survey and legal description and placed surveyor's monuments in the ground to demarcate the boundaries of the outparcel. Although the monuments indicated the correct boundaries, the legal description, unbeknownst to the parties, erroneously described the outparcel as going 35 feet further to the north (i.e. beyond the ditch) than the parties had contemplated.

In 1986, Kane and Radke sold the parent tract to appellees, Steven Craig and Christopher Cook ("Craig and Cook"). The legal description of the parent tract lesses out the outparcel by the same erroneous description; Craig and Cook did not discover the error.

In 1989, Wright sold the outparcel to Mr. Haffield. The deed in that transaction also bears the same erroneous legal description and, like his predecessors, Haffield was unaware of the error.  [*3]  Haffield ultimately lost the property in a foreclosure proceeding in 1993. Appellant Florida Masters Packing Inc. ("Florida Masters") was the successful bidder at the foreclosure sale. The Certificate of Title which was issued to Florida Masters bears the same erroneous legal description. Although Florida Masters did not obtain a survey prior to purchasing the property, the president of the company had verified the boundaries by going to the site and locating the surveyors monuments. Four years later, Florida Masters filed this action to reform deeds and quiet title.

The first issue raised by Florida Masters on appeal is that the deed pursuant to which it acquired title should be subject to reformation of its legal description where the legal description was based on a mutual mistake of the parties. For the following reasons, we disagree, and affirm the trial court's ruling on this issue.

Reformation is an equitable remedy. The doctrine was summarized by the Supreme Court of Florida as follows:

Where an agreement has been actually entered into, but the contract, deed, or other instrument in its written form does not express what was really intended by the parties thereto, equity  [*4]  has jurisdiction to reform the written instrument so as to conform to the intention, agreement, and understanding of all the parties.
 
Jacobs v. Parodi, 50 Fla. 541, 39 So. 833 (1905). Thus, Florida courts have consistently held that where a mistaken writing is the product of the parties' mutual mistake, or unilateral mistake on the part of one party and inequitable conduct by the other, the writing should be reformed to accurately reflect the parties' agreement. Smith v. Royal Automotive Group, Inc., 675 So. 2d 144, 150 (Fla. 5th DCA 1996); Alexander v. Kirkham, 365 So. 2d 1038, 1040 (Fla. 3d DCA 1978).

In this case, the evidence clearly shows, and indeed the court acknowledged, that although the original parties agreed that the northern boundary of the outparcel would be the drainage ditch, the legal description in the deed does not reflect that agreement, and incorrectly describes property extending 35 feet to the north of the ditch. Under these circumstances, reformation would be the remedy between those parties. Jacobs. The problem facing Florida Masters however, is that neither Florida Masters nor Craig and Cook was  [*5]  an original party to the contract, and Craig and Cook appear to have been bona fide purchasers without notice of the error.

Reformation is generally allowed against all persons except a bona fide purchaser for value and without notice. Holley v. May, 75 So. 2d 696, 697 (Fla. 1954)(citing 45 Am.Jur., Reformation of Instruments, Secs. 68 and 69, pp. 624-625). Notice sufficient to eliminate the transferee as a bona fide purchaser for value without notice can be either 'actual' or 'constructive.' Hardaway Timber Co. v. Hansford, 245 So. 2d 911, 913 (Fla. 1st DCA 1971). In Sapp v. Warner, 105 Fla. 245, 254, 141 So. 124, 127 (1932), the supreme court instructed that notice is of two kinds, actual and constructive. 'Constructive notice' has been defined as notice imputed to a person not having actual notice; for example, such as would be imputed under the recording statutes to persons dealing with property subject to those statutes. 'Actual notice' is also said to be of two kinds: (1) Express, which includes what might be called direct information; and (2) implied, which is said to include notice inferred from the fact that the person had  [*6]  means of knowledge, which it was his duty to use and which he did not use, or, as it is sometimes called, 'implied actual notice.' Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L.R.A. (N.S.) 1180, 20 Ann. Cas. 29; Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 12 S. Ct. 239, 35 L. Ed. 1063; Hoy v. Bramhall, 19 N.J. Eq. 563, 97 Am. Dec. 687; Acer v. Westcott, 46 N.Y. 384, 7 Am. Rep. 355. Constructive notice is a legal inference, while implied actual notice is an inference of fact, but the same facts may sometimes be such as to prove both constructive and implied actual notice. Knapp v. Bailey, 79 Me. 195, 9 A. 122, 1 Am. St. Rep. 295.

The principle applied in cases of alleged implied actual notice is that a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand. McQuiddy v. Ware, 87 U.S. 14, 20 Wall. 14, 22 L. Ed. 311; Williams v. Woodruff, 35 Colo. 28, 85 P. 90, 5 L.R.A. (N. S.) 986;  [*7]  Vann v. Marbury, 100 Ala. 438, 14 So. 273, 23 L.R.A. 325, 46 Am. St. Rep. 70; Webb v. John Hancock Mutual Life Ins. Co., 162 Ind. 616, 69 N.E. 1006, 66 L.R.A. 632.
 
Id., 105 Fla. at 254, 141 So. at 127. Constructive notice includes all recitals, references or matters appearing upon the face of any deed which forms an essential link in the chain of title. Id. The court explained a purchaser's duty as follows:

But the rule supported by the best authority is that the record is constructive notice to creditors and subsequent purchasers not only of its own existence and contents, but of such other facts as those concerned with it would have learned from the record, if it had been examined, and inquiries suggested by it, duly prosecuted, would have disclosed. [citations omitted].

If, in the investigation of a title, a purchaser, with common prudence, must have been apprised of another right, notice of that right is presumed as a matter of implied actual notice. [citations omitted]. Means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself. [citations omitted].
 
Id., 105 Fla. at 257, 141 So. at 127.  [*8]  

In this case, by Craig's own admission, prior to purchasing the parent tract, neither he nor Cook took steps to ascertain the boundaries of the property they were purchasing. Neither commissioned a survey, nor physically went to the property to determine the boundary monuments. Further, even had the parties searched the records, they would not have discovered that the legal description in the deed did not correspond with the boundary monuments or that the description did not reflect the intentions of the original grantors. Under Sapp, therefore, they did not have constructive notice or any other notice sufficient to defeat a claim that they are bona fide purchasers without notice. Thus, we hold that it was not error for the trial court to deny Florida Master's request to reform the deed because Craig and Cook were bona fide purchasers for value.

AFFIRMED.
 
TAYLOR, J., and ROTHSCHILD, RONALD J., Associate Judge, concur.
 
 
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1999 Fla. App. LEXIS 12381,*;742 So. 2d 433;
1999-2 Trade Cas. (CCH) P72,656;24 Fla. L. Weekly D 2153
LYNNE NOACK, HARRY NOACK, AND NOACK AND ASSOCIATES INSURANCE AND FINANCIAL SERVICES, INC., Appellants, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.; FLORIDA COMBINED LIFE INSURANCE COMPANY; FLORIDA COMBINED AGENCY, INC.; HEALTH OPTIONS, INC.; AFFILIATED INSURANCE OF PENSACOLA, INC. AND MARK TUBBS, Appellees.
CASE NO. 98-3826
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
742 So. 2d 433;1999 Fla. App. LEXIS 12381;1999-2 Trade Cas. (CCH) P72,656;24 Fla. L. Weekly D 2153
       September 16, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication October 4, 1999. Subsequent appeal at, Remanded by Noack v. Blue Cross & Blue Shield of Fla., Inc., 2003 Fla. App. LEXIS 18076 (Fla. Dist. Ct. App. 1st Dist., Nov. 26, 2003)
 PRIOR HISTORY:   An appeal from the Circuit Court for Escambia County. Joseph Q. Tarbuck, Judge.
DISPOSITION:   Affirmed in part, reversed in part, remanded.
COUNSEL:   Michael J. Pugh of Levin and Tannenbaum, P.A., Sarasota and Daniel Stewart, Milton, for Appellants.
 
Nancy W. Gregoire, W. Edward McIntyre, and Daniel Alter of Bunnell, Woulfe, Krischbaum, Keller, Cohen & McIntyre, P.A., Ft. Lauderdale for Appellees Blue Cross and Blue Shield of Florida, Inc., Florida Combined Life Insurance Company, Inc., and Health Options, Inc.; T.A. Borowski, Jr., of Emmanuel, Sheppard & Condon, Pensacola, for Appellees Affiliated Insurance of Pensacola, Inc. and Mark Tubbs; and Donald H. Partington of Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone, Pensacola, for Appellees.
JUDGES:   LAWRENCE, J., ERVIN and BROWNING, JJ., CONCUR.
OPINIONBY:   LAWRENCE
 OPINION:   LAWRENCE, J.

Harry Noack, Lynne Noack, and Noack and Associates Insurance and Financial Services, Incorporated (Noack), appeal an order dismissing with prejudice their second amended complaint against Blue Cross and Blue Shield of Florida, Incorporated; Florida Combined Life  [*2]  Insurance Company; Florida Combined Agency, Incorporated; and Health Options, Incorporated (Blue Cross). We affirm in part, and reverse in part.

Noack's second amended complaint raises multiple claims surrounding the cancellation of its contract to sell insurance as an agent of Blue Cross. We affirm without discussion the dismissal of the counts which sought to allege a cause of action based upon a written contract, an oral contract, bad faith, and conspiracy.

We write to address the facial sufficiency of Noack's counts based upon fraud in the inducement, reformation, and antitrust. Our court tells us:
 
When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of a complaint as true. Likewise, the appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.
 
Sarkis v. Pafford Oil Co., 697 So. 2d 524, 526 (Fla. 1st DCA 1997)  [*3]  (citations omitted) (emphasis added).
 
Fraud in the Inducement

The trial court's order holds that Noack's claim alleging fraud in the inducement is barred by the economic loss rule; this holding is error, for our court holds that "fraud in the inducement to make a contract is not barred by the economic loss rule." Sarkis, 697 So. 2d at 527. The order also recites that a claim for fraud cannot be predicated upon a mere promise that was not performed; this too is error, as our sister court observes:
 
As a general rule, fraud cannot be predicated upon a mere promise not performed. However, under certain circumstances, a promise may be actionable as fraud where it can be shown that the promissor had a specific intent not to perform the promise at the time the promise was made, and the other elements of fraud are established.

. . . .

In order for a promise of future performance to serve as a predicate for a claim of fraud, it must be established that the promise was made with the present intention not to comply.
 
Alexander/Davis Properties, Inc. v. Graham, 397 So. 2d 699, 706, 707-08 (Fla. 4th DCA 1981) (citations  [*4]  omitted) (emphasis added). Neither is the presence of a merger clause an impediment to a cause of action for fraud in the inducement. See Wilson v. Equitable Life Assurance Soc'y, 622 So. 2d 25, 27 (Fla. 2d DCA 1993) (it is a well-established rule that "alleged fraudulent misrepresentations may be introduced into evidence to prove fraud notwithstanding a merger clause in a related contract").

Noack's complaint specifically alleges that Blue Cross, through its agent Suber, represented that if Noack received a written release from Tubbs, Noack would immediately become general agents able to sell Blue Cross insurance; that Suber's representation was made to induce Noack not to file suit against Tubbs and Blue Cross; that Suber's representation was false when made and Suber, when a general release was received, did not immediately make Noack a general agent. The complaint further alleges that Suber represented that if Noack moved out of their home into a commercial setting, and if Noack hired a secretary, then Noack would immediately become a general agent able to sell Blue Cross insurance and as long as Noack performed adequately Noack would remain a general agent; that  [*5]  Suber made these representations to induce Noack to forego filing suit to enforce earlier promises; that Noack complied with the conditions; and still Blue Cross withheld a contract. Noack's complaint thus states particular misrepresentations of fact. Noack further alleges that these representation were "false when made," "known by [Tubbs and Blue Cross] to be untrue when they were made," and "were made with intent to deceive, mislead, and defraud." Noack further alleges reliance, and damage. The trial court thus erred in dismissing Noack's action for fraud in the inducement.
 
Reformation

The trial court concluded that Noack's count seeking to reform its contract with Blue Cross is barred by the written contract's merger clause, and the parol evidence rule. This is error. Our court holds:
 
Parol evidence is admissible in a reformation action in equity for the purpose of demonstrating that the true intent of the parties was something other than that expressed in the written instrument. By the same token, "the doctrine of merger in deed, under which preliminary understandings, negotiations, and agreements regarding a conveyance are held to merge in the deed leaving  [*6]  it as the sole expositor of the parties' intent, is inapplicable in an action seeking the equitable remedy of reformation."
 
Ayers v. Thompson, 536 So. 2d 1151, 1154 (Fla. 1st DCA 1988) (emphasis added) (affirming the trial court's reformation of a deed, and reversing for clarification of findings on damages).
 

 
Antitrust

The trial court dismissed Noack's count based on the Florida Antitrust Act n1 because "the McCarran-Ferguson Act exempts insurance business from antitrust law." The United States Supreme Court, interpreting the McCarran-Ferguson Act n2 exemption, holds that the act exempts only the "business of insurance" not the "business of insurance companies" from antitrust claims. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 217, 59 L. Ed. 2d 261, 99 S. Ct. 1067 (1979) (holding that the McCarran-Ferguson Act exempts from antitrust laws the business of insurance and not the business of insurers, and where the challenged agreements were merely arrangements for the purchase of goods and services by the insurer, enabling the insurer to minimize costs and maximize profits, and where the agreements  [*7]  did not involve underwriting or spreading of risk, the agreements were not the "business of insurance" so as to be exempt from antitrust scrutiny by virtue of the McCarran-Ferguson Act). The instant claim has nothing to do with the spreading of insurance risks or the issuance of insurance policies, that is, the relationship between an insurer and its insureds. Id. (to include every business decision of an insurance company in the "business of insurance" would be plainly contrary to the statutory language). The court below thus erred in dismissing Noack's antitrust claim on the basis of the McCarran-Ferguson Act.

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n1 The relevant statutes provide: "Every contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful"; "It is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state." §§ 542.18, 542.19, Fla. Stat. (1997).

n2 See 15 U.S.C.A. §§ 1011-1015 (1997).
 

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We agree that Noack's complaint alleges injury to the market, rather than mere injury to Noack. See Greenberg v. Mount Sinai Med. Ctr., 629 So. 2d 252, 257 (Fla. 3d DCA 1993) ("A complaint which does not allege a per se violation must in sum contain three elements: a) a specifically defined market; b) an allegation that defendants possessed the ability to affect price or output; and c) an allegation that plaintiff's exclusion from the market did affect or was intended to affect the price or supply of goods in that market. It is not enough to allege that plaintiffs were injured; there must be an allegation of harm to competition in general.") (citations and footnote omitted).

We thus hold that the court below correctly dismissed Noack's claims for breach of oral and written contract, bad faith, and conspiracy, but incorrectly dismissed with prejudice claims for fraud in the inducement, reformation, and antitrust. We accordingly affirm in part and reverse in part the order below, and remand for consistent proceedings.
 
ERVIN and BROWNING, JJ., CONCUR.


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1999 Fla. App. LEXIS 9638,*;739 So. 2d 144;
24 Fla. L. Weekly D 1695
MULTI-LINE CLAIMS SERVICE, INC., Appellant, vs. CUMIS INSURANCE SOCIETY, INC, Appellee.
CASE NO. 98-2467
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
739 So. 2d 144;1999 Fla. App. LEXIS 9638;24 Fla. L. Weekly D 1695
     July 21, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied September 1, 1999. Released For Publication September 1, 1999.
 PRIOR HISTORY:   An appeal from the Circuit Court of Dade County, Bernard S. Shapiro, Judge. LOWER TRIBUNAL CASE NO. 97-12398.
DISPOSITION:   Reversed and remanded.
COUNSEL:   Wolpe & Leibowitz and Bradley H. Trushin, for appellant.
 
Welbaum, Guernsey, Hingston, Greenleaf & Gregory and W. Frank Greenleaf, for appellee.
JUDGES:   Before JORGENSON, LEVY, and FLETCHER, JJ.
OPINIONBY:   FLETCHER
OPINION:   FLETCHER, Judge.

Multi-Line Claims Service, Inc. [Multi-Line] appeals the trial court's final summary judgment in favor of Cumis Insurance Society, Inc. [Cumis]. We reverse.

Multi-Line is a licensed, independent insurance claims adjusting firm and third party claims administrator. Cumis is an insurance company that insured the Homestead Air Force Base Federal Credit Union, which sustained damage in Hurricane Andrew. In September 1992, Cumis, pursuant to oral agreement, retained Multi-Line to perform claims adjusting services with respect to the hurricane-damaged Credit Union, and advanced certain interim sums for these services on October 5, 1992. n1 Multi-Line rendered its final invoice to Cumis on April 6, 1993. The record on appeal indicates  [*2]  that on July 8, 1993, Cumis sent correspondence to Multi-Line that indicated it disputed the amount of the invoice, and Cumis thereafter did not pay the final invoiced amount. The invoice did not specify when payment was due, but Multi-Line's principals testified that they are usually paid within 60-120 days of rendition of invoice.

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n1 Cumis agreed to compensate Multi-Line in accordance with Multi-Line's "1992 Storm Fee Schedule," wherein Multi-Line's fee would be based on the amount of gross loss experienced by Cumis's insured. Multi-Line's fee would increase incrementally up to an amount certain, after which it would be paid $ 32.00 for each $ 1000.00 of additional loss on the claim. Multi-Line would also be entitled to reimbursement for other costs listed in the 1992 Storm Fee Schedule.
 

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On June 4, 1997, Multi-Line sued Cumis for breach of oral contract and quantum meruit. Cumis answered, raising a statute of limitations defense, and moved for summary judgment on the theory that Multi-Line's breach of contract  [*3]  claim was actually an action on open account. Cumis argued that because the four-year statute of limitations as set forth in section 95.11(3)(k), Florida Statutes (1997) began to run from the rendition of the April 6, 1993 invoice, the action filed in June 1997 was barred. n2 Multi- Line argued that the four-year statute of limitations on an action for breach of an oral contract accrues at the time the party asserting breach is put on notice of the breach, which would have been the July 8, 1993 correspondence from Cumis disputing the amount invoiced. The lower court granted the motion for summary judgment, denied Multi-Line's motion for rehearing, and entered final judgment for Cumis.

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n2 Section 95.11(3)(k), Florida Statutes (1997) provides that an action "on a contract, obligation, or liability not founded on a written instrument . . ." shall be commenced within four years.
 

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The record on appeal shows that Multi-Line specifically stated a cause of action for breach  [*4]  of oral contract for the Credit Union claims adjusting transaction that, although ongoing for a time, contemplated an end to services provided once all of Cumis's claims for that particular hurricane-damaged property had been processed, and a final invoice was rendered to Cumis pursuant to a fixed fee schedule.
n3 With that in mind, the lower court erred in granting summary judgment to Cumis where Multi-Line sufficiently set forth a cause of action for breach of an oral contract, and there remains a genuine issue of fact regarding whether the claim is barred by section 95.11(3)(k), Florida Statutes (1997), the four-year statute of limitations applicable to oral contracts.

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n3 An open account is defined as, variously, an "unsettled debt arising from items of work and labor, . . . with the expectation of further transactions subject to future settlement and adjustment." [e.s.] Robert W. Gottfried, Inc. v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); see also H&H Design Builders, Inc. v. Travelers' Indemnity Co., 639 So. 2d 697 (Fla. 5th DCA 1994).
 

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Accordingly, we reverse the trial court's entry of final summary judgment in favor of Cumis Insurance Society, Inc., and remand with instructions to reinstate Multi-Line Claims Service, Inc.'s breach of contract claim.


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1999 Fla. App. LEXIS 6812,*;734 So. 2d 532;
27 Media L. Rep. 2466;24 Fla. L. Weekly D 1245
THE PUTNAM BERKLEY GROUP, INC., a New York Corporation; TIFFANY PHOTOGRAPHIC, INC., a Florida corporation; and ROBERT HURTH and SHEILA HURTH, Appellants, v. JACQUELINE PORZIO DININ and BART DININ, Appellees.
CASE NOS. 98-1491 & 98-1492
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
734 So. 2d 532;1999 Fla. App. LEXIS 6812;27 Media L. Rep. 2466;24 Fla. L. Weekly D 1245
        May 26, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication June 11, 1999.
 PRIOR HISTORY:   Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James T. Carlisle, Judge; L.T. Case No. CL 95-7893 AE.
DISPOSITION:   REVERSED.
COUNSEL:   Christopher K. Kay and Michael J. Furbush of Kay, Gronek & Latham, LLP, Orlando, for appellant The Putnam Berkley Group, Inc.
 
John P. Kelly and Meenu T. Sasser of Gunster Yoakley Valdes-Fauli & Stewart, Fort Lauderdale, for appellant Tiffany Photographic, Inc., Robert Hurth and Sheila Hurth.
 
David S. Oliver of Greenberg Traurig, P.A., Orlando, for appellee Jacqueline Porzio Dinin.
JUDGES:   FARMER, J., GUNTHER, J., and HOLMES, ILONA M., Associate Judge, concur.
OPINIONBY:   FARMER
 OPINION:   FARMER, J.

A woman who was the subject of a photograph first published in a book in Florida in 1988 later sued the photographer and the publisher in 1995 for damages for unauthorized publication. n1 The trial judge denied a summary judgment on the statute of limitations, and the case proceeded to trial, resulting in a jury verdict awarding her damages on her claims. n2 We reverse the final judgment because the claims are barred by the statutes of limitations.  [*2]  

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n1 Actually there are two photographer defendants, the Hurths and their corporation, Tiffany.

n2 Two separate theories of liability went to the jury: one based on a violation of section 540.08 and the other based on invasion of privacy. The verdict was in favor of the publisher on the invasion of privacy claim but in favor of plaintiffs on the statutory violation against the publisher and on both claims against the photographer.
 

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The general Florida statute of limitations bars actions founded on a statutory liability and most tort actions if they are not commenced within 4 years of the time the cause of action accrued, n3, n4 but provides for a delay of the running of the limitations period until discovery where the cause of action is for products liability or fraud. n5 Another provision of the statutes states that a cause of action founded upon a single publication for damages "for libel or slander, invasion of privacy, or any other tort founded upon any single publication" [e.s.] accrues at the  [*3]  time of the first publication in this state. n6 Applying the plain meaning of these statutory provisions, plaintiffs' claims became time-barred 4 years after the first publication in Florida.

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n3 § 95.11(3)(f) and (p), Fla. Stat. (1997) ("Actions other than for recovery of real property shall be commenced as follows . . . (3) within four years . . . (f)
 
an action founded on a statutory liability . . . (p) any action not specifically provided for in these statutes.").

n4 § 95.031, Fla. Stat. (1997) ("Except as provided in subsection (2) and in s. 95.051 and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues."). Section 95.051 provides when a limitations period may be tolled, but none of the allowable tolling provisions apply to this action. See fn. 9, below.

n5 § 95.031(2), Fla. Stat. (1997) ("Actions for products liability and fraud under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.").  [*4]  


n6 § 770.07, Fla. Stat. (1997).
 

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Because their statutory claim was based on section 540.08, n7 as distinguished from a claim based on the common law of defamation, plaintiffs argue, it did not accrue until they discovered the unauthorized 1988 publication many years later, in 1995. Unfortunately their argument is not supported by any statutory text.

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n7 § 540.08(2), Fla. Stat. (1997) ("In the event the consent required in subsection (1) is not obtained, the person whose name, portrait, photograph . . . may bring an action to enjoin such unauthorized publication . . . and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.").
 

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In Federal Insurance Company v. Southwest Florida Retirement Center, 707 So. 2d 1119, 1122 (Fla. 1998), the court said that "when construing statutes of limitations, courts generally  [*5]  will not write in exceptions when the legislature has not," citing its recent opinion in Fulton County Administrator v. Sullivan, 1997 Fla. LEXIS 1462, 22 Fla. Law W. S 578-79, 1997 WL 589312 (Fla. Sept. 25, 1997). n8 Sullivan involved an attempt to avoid a statute of limitations by showing that the tort-feasor had fraudulently concealed his wrong and thus the fact of the accrual of the cause of action. Because earlier decisions of the court had apparently approved a common law fraudulent concealment avoidance of a limitations bar, the court explained why that particular judge-made rule was no longer available:

"we find that by enacting section 95.051  [*6]  in 1975, the legislature specifically set forth the limited circumstances which will toll the statute of limitations. Since fraudulent concealment of the identity of the tort-feasor is not an enumerated circumstance, we find that in this case, to be timely, the wrongful death action should have been filed within two years of the death of the decedent. We are bound by the legislature's enactment, and therefore we approve the decision in this case which reverses the judgment against respondent."
 
1997 Fla. LEXIS 1462, *5-6, 1997 WL 589312, at 2.

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n8 We note that the opinion in Sullivan has not yet been published in the Southern Reporter even though, as of the time this opinion is written, more than 18 months have elapsed since it was first released. While the Sullivan opinion is thus not final, that lack of finality did not inhibit the supreme court itself from relying on it in Federal Insurance Company.
 

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The court then traced the use of the "fraudulent concealment" avoidance in several earlier cases, but ultimately explained:

"However, in 1974, the legislature enacted section 95.051, Florida Statutes, see ch. 74-382, § 4, Laws of Fla., in which it enumerated several bases for tolling the statute of limitations, including defendant's use of a false name or concealment in Florida to avoid service of process. See § 95.051(1)(b)-(c), Fla. Stat. (1975).
Notably absent from this list was fraudulent concealment of the identity of the actual tort-feasor. While section 95.11(4)(b) provided a tolling provision for fraudulent concealment of the discovery of the plaintiff's  [*7]  injury in medical malpractice actions, there was no similar tolling provision for wrongful death causes of action. Compare § 95.11(4)(b), Fla. Stat. (1975), with § 95.11(4)(d), Fla. Stat. (1975). Moreover, in section 95.051(2), the legislature stated, 'No disability or other reason shall toll the running of any statute of limitations except those specified in this section . . . the Florida Probate Code, or the Florida Guardianship Law.' This exclusivity provision is applicable to this action. See § 95.051(2), Fla. Stat. (1985).

"Thus, the issue presented by the certified question is the continued viability of our court-made tolling provision for fraudulent concealment in the face of section 95.051, Florida Statutes (1985).

When interpreting a statute, legislative intent is the polestar by which we are guided. See Parker v. State, 406 So. 2d 1089 (Fla. 1981).

This intent is gleaned primarily from the plain language of the statute. See Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So. 2d 1315 (Fla. 1992). When construing statutes of limitations, generally courts will not write in exceptions when the legislature has refused to do so. Carey v. Beyer, 75 So. 2d 217 (Fla. 1954).

"Given these rules of construction, we find the plain language of section 95.051 does not provide for the tolling of the statute of limitations in cases in which the tort-feasor fraudulently conceals his or her identity. The statute specifically precludes application of any tolling provision not specifically provided for by the legislature. See § 95.051(2), Fla. Stat. (1985). In the face of such clear legislative direction, we are compelled to hold that fraudulent concealment of the identity of a tort-feasor in actions such as the one before us today will not toll the statute of limitations. See Carey; Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952) ('We cannot write into the law any other exception, nor can we create by judicial fiat a reason, or reasons, for tolling the statute since the legislature dealt with such topic and thereby foreclosed judicial enlargement thereof.'); Swartzman v. Harlan, 535 So. 2d 605 (Fla. 2d DCA 1988) (finding that under section 95.051(2), Florida Statutes (1987), the court was not able to create an exception to toll the statute of limitations not specifically enumerated by the legislature); In re Southeast  [*9]  Banking Corp., 855 F. Supp. 353 (S.D.Fla. 1994), aff'd, 69 F.3d 1539 (1995) (same)." [f.o.]
 
1997 Fla. LEXIS 1462, *9-11, 1997 WL 589312, at 3; see also Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113 (Fla. 1994) (rejecting judge-made discovery rule in defamation actions and holding that limitations issue is controlled "by the plain language of applicable statutes").

In section 95.031 the legislature has clearly said that "the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues." [e.s.] The legislature has provided only a few exceptions from this broad rule. For example, subsection (2) of section 95.031 expressly begins the limitations period in product liability and fraud cases from the time of discovery rather than the accrual of the cause of action. Section 95.11(4) begins the running of the statute for professional malpractice from the time of discovery.
Finally, section 95.051 tolls the running of the statute in several explicit circumstances, but none of the enumerated circumstances include discovery in a case involving section 540.08. In fact this provision then adds that  [*10]  no other reasons will toll a limitations period. n9

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n9 Section 95.051, Fla. Stat. (1997), provides that:

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

(a) Absence from the state of the person to be sued.

(b) Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.

(c) Concealment in the state of the person to be sued so that process cannot be served on him or her.

(d) The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of action.

(e) Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.

(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

(g) The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.

(h) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in s. 95.11. In any event, the action must be begun within 7 years after the act, event, or occurrence giving rise to the cause of actio
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1999 Fla. App. LEXIS 3449,*;729 So. 2d 476;
24 Fla. L. Weekly D 788
USAA CASUALTY INSURANCE COMPANY, also improperly known as USAA PROPERTY & CASUALTY INSURANCE, Appellant, v. CRISTA MARIE THREADGILL, a minor, by and through her parents, CHARLES and GRICELDA THREADGILL, and CAITLIN THREADGILL, a minor, by and through her parents, CHARLES and GRICELDA THREADGILL, CHARLES THREADGILL and GRICELDA THREADGILL, individually, JEFFREY ALTON LACEY, and MALCOLM B. MACKINTOSH, Appellees.
CASE NOS. 98-0102 and 98-0431
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
729 So. 2d 476;1999 Fla. App. LEXIS 3449;24 Fla. L. Weekly D 788
      March 24, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied April 30, 1999. Released for Publication April 30, 1999. Petition for Review Denied September 17, 1999, Reported at: 1999 Fla. LEXIS 1678.
 PRIOR HISTORY:   Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Fred A. Hazouri, Judge; L.T. Case No. CL97-1248A0.
DISPOSITION:   The final summary judgment denying reformation affirmed.
COUNSEL:   Betsy E. Gallagher of Gallagher & Howard, Tampa, and Richard J. Suarez of Hardeman & Suarez, P.A., Miami, for appellant.
 
Richard A. Kupfer of Richard A. Kupfer, P.A., and William J. McAfee of Wagner, Johnson & McAfee, P.A., West Palm Beach, for Appellees-Crista Marie Threadgill, Charles Threadgill, Gricelda Threadgill, and Caitlin Threadgill.
 
Thomas R. Shahady of Houston & Shahady, P.A., Fort Lauderdale, for Appellee-Malcolm B. Mackintosh.
JUDGES:   GROSS, J., TAYLOR, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.
OPINIONBY:   GROSS
 OPINION:   GROSS, J.

The trial court in this case granted summary judgment in favor of the insured on the insurance company's action to reform an insurance policy. We affirm, because the record does not demonstrate the existence of a mutual mistake sufficient to justify reformation.

Since 1994, appellee Malcolm Mackintosh was the named insured under an automobile  [*2]  liability policy issued by appellant USAA Casualty Insurance Company ("USAA"). In November, 1995, his car was involved in an accident injuring Crista Threadgill, a minor. As a result, Charles and Gricelda Threadgill, her parents, filed a lawsuit against Mackintosh. A dispute arose between USAA and the parties to the lawsuit over the policy limits applicable to Crista's individual claim.

Mackintosh's policy was renewed every six months. On all policies issued to him, the declarations pages showed limits of liability of $ 100,000 for "EA PER" and $ 300,000 for "EA ACC." A limitation of liability provision in a policy that expired in April, 1995, provided that the limit of liability shown in the declarations page for each person was the maximum limit of liability for "all damages for bodily injury sustained by any one person in any one auto accident." In 1995, USAA drafted a new Florida Auto Policy, consistent with a plan to write a separate automobile contract for each state in which it did business. The "limit of liability" provision of the new policy provided in pertinent part:

For BI [bodily injury] sustained by any one covered person in any one accident, our maximum  [*3]  limit of liability for all resulting damages . . . is the limit of liability shown in the Declarations for "each person" for BI Liability. Subject to this limit for "each person", the limit of liability shown in the Declarations for "each accident" for BI Liability is our maximum limit of liability for all damages for BI resulting from any one accident . . . . These limits are the most we will pay regardless of the number of covered persons, claims made, vehicles or premiums shown in the Declarations, or vehicles involved in the auto accident.
 
Significantly, the new policy added the adjective "covered" to modify "person" in the limit of liability provision. Crista Threadgill did not fall within the policy's definition of a "covered person." Under the terms of the new policy, the $ 100,000 per person limitation in the policy would not apply to her claim, which would be subject only to the $ 300,000 ceiling for each accident. This revised version of the policy was the one in effect at the time of the accident in this case.

USAA filed an action against Mackintosh and the Threadgills to correct what it characterized as a "scrivener's error" in the policy. USAA alleged  [*4]  that when it rewrote its policy in 1995, seventeen months before the Threadgills' claim was filed, it had inadvertently added the word "covered" to the limitation of liability section of its policy. Contained in the appellees' response to the lawsuit was the assertion that reformation was not proper, since there had been no mutual mistake as to the drafting of that section of the insurance policy.

Mackintosh and the Threadgills moved for summary judgment on USAA's claim for reformation of the insurance contract. In support of the motion, they filed Mackintosh's affidavit which stated that as the insured, he was not involved in the drafting of the policy, nor was he advised of any substantive change to the renewed policy. In opposition to the motion, USAA filed an affidavit of a senior staff underwriter which asserted that in redrafting its policy, it was USAA's intent that liability coverage remain limited to $ 100,000 per person, including those who did not fit within the policy's definition of a "covered person"; that "someone [had] inadvertently added the word 'covered'" to the "Limit of Liability" section of the policy; that USAA did not notice the error before submitting the  [*5]  policy to the State of Florida and implementing it for all new and renewal policies after March 1, 1995; and that after discovering the "scrivener error" in June, 1996, USAA corrected its policy form, with the change being approved by the insurance commissioner on July 8, 1996. USAA acknowledged in this litigation that the policy language at issue was used in over 70,000 other Florida policies in 1995 and 1996.

The trial court entered final summary judgment against USAA on the ground that there was no evidence of "mutual mistake in the drafting of the language of the policy." The judgment determined that the Threadgills were entitled to "$ 300,000 in bodily injury coverage" for Crista's claim.

"A court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument." Providence Square Ass'n, Inc. v. Biancardi, 507 So. 2d 1366, 1369 (Fla. 1987). An insurance policy as issued and accepted:

is prima facie the contract of the parties; and, in order to have it reformed, the burden is on the plaintiff to show that a different contract was entered  [*6]  into from that which was reduced to writing, and this fact must be proved by clear, convincing, and satisfactory evidence, not alone by a preponderance of the evidence.
 
Rosenthal v. First Nat'l Fire Ins. Co., 74 Fla. 371, 381, 77 So. 92, 94 (1917); Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 298 (Fla. 1974) (holding that plaintiff's burden of proof in reformation action is by "clear and convincing evidence"). Rigorous application of the higher standard of proof in reformation cases promotes the policy that parties should not be subjected to contractual obligations to which they never agreed. See Smith v. Royal Automotive Group, Inc., 675 So. 2d 144, 154 (Fla. 5th DCA 1996).

For an insurance policy to be reformed, the Florida supreme court has written that:

like that of any other written contract, the want of conformity to the agreement of the parties must be occasioned by a mistake which is mutual and common to both parties to the instrument. A mistake on one side may be a ground for rescinding, but not for reforming, the contract. Where the minds of the parties have not met, there is no contract, and hence none to be rectified.
 
Fidelity Phenix Fire Ins.  [*7]  Co. of New York v. Hilliard, 65 Fla. 443, 446, 62 So. 585, 586 (1913).

The supreme court has concisely written that a mutual mistake sufficient to support reformation requires a showing "that the parties agreed on one thing and when they put it in the contract they said something different." Blumberg v. American Fire & Cas. Co., 51 So. 2d 182, 184 (Fla. 1951).

Cases finding reformation appropriate have typically involved contact between the parties which resulted in the formation of an express contract and which preceded the creation of a written document containing a mistake, contrary to an agreed provision in the express contract. For example, in Blumberg, the insured and the insurance agent intended for a policy to cover all of the insured's business operations. The parties had had extensive dealings; the carrier had audited the insured's books to arrive at a premium charge on the policy. In reducing the policy to writing, the scrivener mistakenly failed to write the policy to include coverage for businesses which the insured operated in his individual capacity. The supreme court wrote that such a mutual mistake in the policy as written was correctable. See 51 So. 2d at 183-84.  [*8]  

Similarly, Mueller v. Marks, 576 So. 2d 1337 (Fla. 4th DCA 1991), arose out of the sale of a condominium. The written purchase contract provided that the buyer was to acquire fee simple title to the unit, and that the seller could remain in the unit as a tenant. The deed granted the seller a "life estate for five years," an interest in property that did not conform to the contract. This court held that the buyer was entitled to reformation of the deed to mirror the terms of the contract to reflect that the buyer owned the condominium in fee simple. See 576 So. 2d at 1337-38; see also Kidd v. Fowler, 498 So. 2d 969, 970 (Fla. 4th DCA 1986) (allowing reformation of a deed which failed to include a clause in a purchase and sale agreement reserving a life estate); Nall v. Raybon, 451 So. 2d 923, 924 (Fla. 1st DCA 1984) (allowing reformation where a mortgage cancellation erroneously included certain property); Boston Old Colony Ins. Co. v. Popple, 305 So. 2d 877, 880 (Fla. 1st DCA 1974) (allowing reformation of auto insurance policy where the wrong vehicle had been deleted from coverage).

A final example of a reformation based on mutual mistake is contained  [*9]  in Circle Mortgage Corp. v. Kline, 645 So. 2d 75 (Fla. 4th DCA 1994). There, this court affirmed a trial court's reformation of a note and adjustable rate mortgage which failed to contain an interest rate change date that had been specified in a previously signed disclosure form which contained the parties' agreement. We observed that "the rationale for reformation is that a court sitting in equity does not alter the parties' agreement, but allows the defective instrument to be corrected to reflect the true terms of the agreement the parties actually reached." Id. at 78.

In this case, the trial court correctly concluded that reformation was not appropriate. USAA cannot make the showing under Rosenthal that a different contract was entered into from the policy which was reduced to writing and supplied to Mackintosh. There was never any meeting of the minds on the "limit of liability" provision in the policy. It was never discussed and never negotiated. The provision did not derive from information supplied by the insured. The "limit of liability" provision is buried deep in the boilerplate of the policy. Once Mackintosh began to pay a premium on the new policy, that policy  [*10]  became the contract of the parties. There was no mutual mistake. At most, USAA demonstrated a unilateral mistake, which "may be a ground for rescinding, but not for reforming the contract." Fidelity Phenix Fire Ins. Co. of New York , 62 So. at 586.

In the failure to demonstrate a mutual mistake, this case is most similar to Mustelier v. Consolidated Mutual Insurance Co., 296 So. 2d 634 (Fla. 3d DCA 1974), where the insureds under a homeowners' policy appealed a judgment limiting them to a recovery of $ 500 for stolen jewelry. The trial court had granted the insurance company's request for reformation of the contract to apply a limitation of liability contained in a policy endorsement. The endorsement purporting to limit liability referred to a numbered subsection of the policy that did not exist; the trial court reformed the policy to apply to a differently numbered section of the policy that pertained to theft of jewelry. The endorsement with the erroneous reference had been attached to the policy provided to the insureds. The third district reversed, citing to Rosenthal and holding that there had been no showing of a mutual mistake in the wrong section number contained  [*11]  in the endorsement:

although the trial court based its decision upon its determination that it had ascertained the intent of the insurer and the insured, the record is devoid of any evidence that the appellants ever had any knowledge of the limitation. It is difficult to understand how the mistake made can be held to be mutual when there is no evidence to show that the policyholders were ever made aware of the intended limitation.
 
Mustelier, 296 So. 2d at 636.

The final summary judgment denying reformation is affirmed.
 
TAYLOR, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.


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1999 Fla. App. LEXIS 2455,*;727 So. 2d 377;
24 Fla. L. Weekly D 616
MAGMA TRADING CORPORATION, Appellant, v. LESTER LINTZ, et al., Appellee.
CASE NO. 97-3467
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
727 So. 2d 377;1999 Fla. App. LEXIS 2455;24 Fla. L. Weekly D 616
    March 5, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication March 24, 1999.
 PRIOR HISTORY:   Appeal from the Circuit Court for Brevard County, Warren Burk, Judge.
DISPOSITION:   AFFIRMED.
COUNSEL:   Barry Apfelbaum, Esquire, Orlando, for Appellant.
 
Mike Krasny of Krasny & Dettmer, Melbourne, for Appellee.
JUDGES:   THOMPSON, J., SHARP, W., and PETERSON, JJ., concur.
OPINIONBY:   THOMPSON
 OPINION:   THOMPSON, J.

Magma Trading Corporation ("Magma") appeals a summary final judgment in a quiet title action. The trial court entered judgment in favor of appellees Lester Lintz, Laurence E. Lea, Walter E. Kramer, and Hazel B. Kramer, individually and as trustees, ruling that they acquired the land by "adverse possession under color of title." The court found that the appellees satisfied section 95.16, Florida Statutes, because they obtained title to the property by a deed issued in 1984, and, for seven years, all of the property surrounding the subject parcel was "restricted by a chain link fence, locked gates, dense trees, scrubs and swales." We affirm.

Section 95.16, Florida Statutes, reads in part:

(1) When the occupant, or those under whom he claims, entered into possession of real property under a claim of title exclusive  [*2]  of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. . .

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

* * *

(b) When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment or decree. . . .
 
On appeal, Magma does not dispute that the appellees obtained possession of the subject parcel (Parcel 6) in 1984 under color of title or that they have continuously paid taxes on the property since 1984. Magma's only argument is that there is a genuine factual issue concerning whether Parcel 6 was substantially enclosed during the seven-year statutory period, based on observations made several years after the seven-year period had expired.

Supporting their motion for summary judgment, the appellees filed an affidavit stating that they own the land surrounding Parcel 6 on three sides. The affidavit  [*3]  further states that the entire tract, including Parcel 6, is enclosed in the following manner: on the northern boundary, by dense trees, scrub, a ten-foot swale, a lake, and a chain link fence with a locked gate; on the southern boundary, by fences, a small lake, and a locked gate; on the western boundary, by dense jungle-like forest and wetlands; and on the eastern boundary, by a chain link fence with a locked gate running the length of Parcel 6, a four-foot swale, dense trees and scrub, and railroad tracks. The affidavit states that the three gates are "locked and are maintained and controlled by" the appellees.

Magma filed a counter-affidavit signed by its president stating that he had visited the property ten times over the three or four years before the complaint was filed in 1997. He stated that at those times, he was able to gain access through the chain link fence, which was open with weeds growing around it. Also, there were no posted signs indicating the land was private property. Moreover, he had observed children and young adults participating in war games and paintball games on the property. Based on these observations, he alleged the property was "not enclosed by dense  [*4]  trees, lakes, and locked gates . . . but has always been easily accessible." (Emphasis added.)

Magma contends that its affidavit raises an issue of material fact, i.e., whether the property was substantially enclosed for seven years, and therefore, the motion for summary judgment should have been denied and the issue submitted to a jury. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985).
We disagree with this contention. Magma's affidavit alleges only that after the statutory seven-year period ended in 1991, the company president went onto the property and found it was not then protected by a substantial enclosure. Nowhere in the affidavit does Magma allege that during the seven years between October 1984 and October 1991 the property was not substantially enclosed. Magma argues that the trial court should have inferred the property was not substantially enclosed several years earlier because of observations subsequent to the seven-year statutory time. We do not think this is a reasonable inference.

In Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), the Florida Supreme Court held that the party moving for a summary judgment has the burden of conclusively showing the nonexistence  [*5]  of a genuine issue of material fact, and the proof must overcome all reasonable inferences which may be drawn in favor of the non-moving party. See also Brooks v. Herndon Ambulance Service, Inc., 475 So. 2d 1319 (Fla. 5th DCA 1985).
Here, the appellees have met their burden with attachments to their motion and affidavits. To defeat the motion, Magma could not merely assert there existed a genuine issue of material fact, it must have presented evidence to support its claim. Martin v. Edenfield, 609 So. 2d 27 (Fla. 1992); Harvey v. Building, Inc. v. Haley, 175 So. 2d 780 (Fla. 1965). For example, Magma could have presented aerial photographs from the property appraisers' office to show that the property was not substantially enclosed during the statutory seven-year period. Depositions or affidavits from the paintballers or the children playing war games stating that they used the property during the applicable period could have been obtained. Or, the depositions of the appellees that the property was being used by strangers during this time could have been filed in the record. However, no evidence other than Magma's assertion appears in the record, and the assertion alone  [*6]  does not support the inference that the property was not substantially enclosed during the statutory period. See National Airlines, Inc. v. Florida Equipment Co. of Miami, 71 So. 2d 741, 744 (Fla. 1954)("Of course, a litigant by merely asserting a fact, without any evidence to support it, cannot avoid a summary disposition of his case.")

Florida Rule of Civil Procedure 1.510 states that a party is entitled to summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Here, Magma did not support any of the alleged facts that would prevent summary judgment.

AFFIRMED.
 
SHARP, W., and PETERSON, JJ., concur.


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1999 Fla. App. LEXIS 2235,*;731 So. 2d 169;
38 U.C.C. Rep. Serv. 2d (Callaghan) 454;24 Fla. L. Weekly D 1145
JENNIE C. KOLSKI a/k/a JEAN KOLSKI a/k/a JEANNIE KOLSKI, by and through STEPHEN J. KOLSKI, Appellant, vs. PATRICIA M. KOLSKI, Individually and as Trustee of ALEXANDER PATRICK KOLSKI 1990 SPECIAL TRUST; and as Trustee of JOSEPH ALEXANDER KOLSKI 1990 SPECIAL TRUST, Appellee.
CASE NO. 98-2331
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
731 So. 2d 169;1999 Fla. App. LEXIS 2235;38 U.C.C. Rep. Serv. 2d (Callaghan) 454;24 Fla. L. Weekly D 1145
         March 3, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  As Corrected April 6, 1999. As Corrected April 12, 1999. As Revised May 12, 1999. Released for Publication May 12, 1999.
 PRIOR HISTORY:   An appeal from the Circuit Court for Dade County, Robert P. Kaye, Judge. LOWER TRIBUNAL NO. 98-135.
DISPOSITION:   Reversed and remanded.
COUNSEL:   Catlin, Saxon, Tuttle & Evans, P.A.; Ross & Tilghman and Lauri Waldman Ross, for appellant.
 
Koppen, Watkins, Partners & Associates, P.A. and R. Daniel Koppen, for appellee.
JUDGES:   Before COPE, GREEN, and SORONDO, JJ. SORONDO, J., concurs. COPE, J. (concurring in part and dissenting in part).
OPINIONBY:   GREEN
 OPINION:  
REVISED OPINION

GREEN, J.

Appellant, Jennie C. Kolski, the mother-in-law of appellee, Patricia M. Kolski, filed a four count amended complaint for unjust enrichment and restitution, repayment of a loan, imposition of a constructive trust and reformation of a writing. This is an appeal from a final order dismissing the complaint with prejudice as being barred by the statute of frauds and for failing to state a cause of action for reformation. We reverse.

Jennie C. Kolski sued her daughter-in-law, Patricia, individually and in her capacity as trustee for two trusts established  [*2]  for the benefit of her two sons, Patrick and Alexander II. As alleged in the second amended complaint, Jennie orally loaned $ 40,000 to her late son, Alexander and his wife, Patricia, for them to purchase and capitalize a mortuary business. Jennie's son and daughter-in-law operated this business until her son's death. The terms of this loan were that it was payable on demand with an interest rate of ten percent (10%) per annum payable on a semi-annual basis. The interest rate was later reduced to six percent (6%) per annum. After Alexander's death, Patricia continued to operate the business and induced her mother-in-law, Jennie to forbear collection of the loan by ratifying and assuming the repayment obligation in full and continuing to make the scheduled semi-annual interest payments. Thereafter, Patricia continued to make the semi-annual interest payments on checks written on her personal checking account as well as on checks written on the trust accounts for her minor sons. As evidence of this oral loan agreement, Jennie attached a copy of her Last Will and Testament dated May 17, 1988, which states in Article VIII that:

I hereby advise my personal representative and children that  [*3]  there is owing to me, and is to be included in my estate, the sum of forty thousand dollars ($ 40,000.00) from my late son ALEXANDER KOLSKI, to whom I loaned this amount, at six percent (6%) annual interest, for the purpose of his purchasing the mortuary business in which he was engaged at the time of his death. I have discussed this loan with his widow, PATRICIA KOLSKI, who has acknowledged her obligation to repay the loan in full. She has requested, and I have agreed that, for the present, she will be required to make interest payments only, on a semi-annual basis, so that the business will not be adversely affected during the period of transition following my son's recent death.
 
Jennie further attached copies of canceled checks made payable to her and signed by Patricia which indicated that they were for loan interest and copies of Patricia's tax returns which reflect that the interest deductions taken by her in various years corresponded with her interest payments to Jennie.

The amended complaint also alleges that at some point, Patricia sold the mortuary business and converted the cash to her benefit and/or the benefit of the Alexander Patrick Kolski 1990 Special Trust and/or  [*4]  the Joseph Alexander Kolski 1990 Special Trust. In October 1995, Jennie made her first demand for the repayment of the principal of the loan. On or about September 9, 1997, Patricia denied, for the first time, her obligation to repay the $ 40,000 dollars to Jennie. This lawsuit was then filed and Patricia moved to dismiss the same on the grounds that it was barred both by the statute of frauds and the statute of limitations and that the equitable claim for reformation failed to state a cause of action. The motion was granted with prejudice on the grounds that it was barred by the statute of frauds and that it failed to state a cause of action for reformation. n1 This appeal followed.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Although the trial court did not dismiss the amended complaint on the additional grounds that this action was barred by the statute of limitations, the appellees have commendably conceded on appeal that this action was not subject to dismissal on these grounds.
A cause of action on a contract does not accrue for purposes of the statute until the breach or in this case, upon Patricia's first refusal to repay the loan in 1997. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996) (citing Fradley v. County of Dade, 187 So. 2d 48, 49 (Fla. 3d DCA 1966)).
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*5]  

On review of a motion to dismiss for failure to state a cause of action, we are "'required to treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to plaintiffs.'". Dee v. Sea Ray Boats, Inc., 702 So. 2d 1349, 1349 (Fla. 3d DCA 1997) (quoting Hollywood Lakes Section Civic Ass'n, Inc. v. City of Hollywood, 676 So. 2d 500, 501 (Fla. 4th DCA 1996)).
Viewing the allegations of the amended complaint in this light, we conclude that they were sufficient to take this action outside of the statute of frauds and sufficient to state a cause of action for reformation.

 
The statute of frauds, section 725.01, Florida Statutes governs oral promises to repay the debts of another. It provides that:

No action shall be brought whereby to charge . . . the defendant upon any special promise to answer for the debt, default or miscarriage of another person . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith[.]
 
§ 725.01, Fla. Stat. (1997) (emphasis added).
To satisfy the statute, a note or  [*6]  memorandum may take almost any possible form.
See Bader Bros. Transfer & Storage, Inc. v. Campbell, 299 So. 2d 114, 115 (Fla. 3d DCA 1974) (holding settlement sheets were sufficient to constitute memorandum under statute of frauds);
Rank v. Sullivan, 132 So. 2d 32, 36 (Fla. 2d DCA 1961) (holding statement in will of person being charged constituted a sufficient memorandum to satisfy statute of frauds);
Heffernan v. Keith, 127 So. 2d 903, 904 (Fla. 3d DCA 1961) (finding that telegram constitutes note or memorandum confirming prior agreement).
All that the statute requires is written evidence from which the whole contract may be made out.

Further, "for purposes of the statute of frauds, several writings, only one of which is signed by the debtor, may be aggregated to satisfy the statute provided that the signed writing expressly or implicitly refers to the unsigned document.". Cook v. Theme Park Ventures, Inc., 633 So. 2d 468, 471 (Fla. 5th DCA 1994); see also Middelthon v. Crowder, 563 So. 2d 94, 95 (Fla. 3d DCA 1990); Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So. 2d 463, 465 (Fla. 5th DCA 1988) (holding real estate terms of sale together with buyer's  [*7]  guide and check constituted sufficient writings to satisfy statute); First Guaranty Corp. v. Palmer Bank and Trust Co. of Fort Myers, N.A., 405 So. 2d 186, 189 (Fla. 2d DCA 1981) ("Since no reference is made to the mortgage itself or to any obligation owing to Palmer Bank or to any other financial institution, the mortgage document cannot be interrelated with the joint venture agreement to satisfy the statute of frauds."). "An implied reference may be established by either the fact that the documents relate to the same subject matter or by physical annexation." Id. at 188. Moreover, in certain instances, parol evidence may be admissible to clarify the writing. Id.



We find that the specific reference to the terms of the alleged loan made by Jennie in her will together with the canceled checks signed by Patricia in the precise amount of the semi-annual interest payments on the $ 40,000 dollar loan and with notations that they were for "loan interest", were sufficient writings to take the oral agreement out of the statute of frauds. Here, Patricia Kolski, the party to be charged, at least made an implicit reference on her checks to the terms of the loan as spelled out in  [*8]  Jennie Kolski's will. Based upon such implicit references, parol evidence may be admissible to clarify the canceled checks and connect them to the particular provision in Jennie's will. See Jackson v. Parker, 153 Fla. 622, 15 So. 2d 451, 460 (1943) ("Parol evidence is admissible to connect several written instruments and show that they were all parts of one transaction."); Northwestern Bank v. Cortner, 275 So. 2d 317, 319 (Fla. 2d DCA 1973) (same); see also, First Guar. Corp., 405 So. 2d at 188. Thus, specifically as to count II for the repayment of a loan, we conclude that it was error to dismiss this cause based upon the statute of frauds.

As to counts I and III for unjust enrichment/restitution and the imposition of a constructive trust respectively, we agree that the statute of frauds is simply inapplicable to such claims. See Harrison v. Pritchett, 682 So. 2d 650, 652 (Fla. 1st DCA 1996) (holding that statute of frauds inapplicable to quantum merit action which is common law variety of restitution); Zanakis v. Zanakis, 629 So. 2d 181, 183 (Fla. 4th DCA 1993) (holding that constructive and resulting trusts can be based on parol evidence which is consistent  [*9]  with statute of frauds which specifically excepts these equitable trusts); Varnes v. Dawkins, 624 So. 2d 349, 351 (Fla. 1st DCA 1993) (finding that statute of frauds inapplicable to trusts arising by operation of law). Thus, the trial court erred in dismissing these counts as well. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 Our decision here is based solely on the application of the statute of frauds and in no way addresses the merits of this action. See Harrison, 682 So. 2d at 652-53.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

On the remaining count IV, Jennie seeks a reformation of one of Patricia's canceled checks to reflect the parties' alleged agreement that the $ 40,000 dollar loan was payable upon demand. In this count, Jennie alleges the existence of a "writing which acknowledges a majority of the material terms of an oral demand loan agreement" between the parties and that the subject check is missing the demand payment term as a result of a unilateral mistake on her part and due to Patricia's inequitable conduct. n3 We conclude that these allegations are sufficient to  [*10]  state a cause of action for reformation. n4 Reformation is an equitable remedy, see Smith v. Royal Automotive Group, Inc., 675 So. 2d 144, 151 (Fla. 5th DCA 1996), which "acts to correct an error not in the parties' agreement but in the writing which constitutes the embodiment of that agreement." Id. at 150. Thus, where the alleged mistake in the writing is the "product of the parties' mutual mistake, or unilateral mistake on the part of one party and inequitable conduct by the other, the writing should be reformed to accurately reflect the parties' agreement." Id. n5 (emphasis added) (citations omitted). The underlying rationale is that in reforming the instrument the agreement of the parties is in no way altered but merely corrects the defect in the written document to reflect the true terms of the parties' agreement. See Providence Square Ass'n Inc. v. Biancardi, 507 So. 2d 1366, 1369-70 (Fla. 1987). We find that the well-pled allegations contained in this count were sufficient to withstand the motion to dismiss and we reverse the trial court's dismissal of this count as well.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 The revised dissent now appropriately concedes that a personal check is a negotiable instrument, see section 673.1041(1), (3), (6), Florida Statutes (1995); Kehle v. Modansky, 696 So. 2d 493, 494 (Fla. 4th DCA 1997) (personal check is a negotiable instrument); Medina v. Lamonica, 492 So. 2d 809, 810 (Fla. 3d DCA 1986), which may be the subject matter of a reformation action. See 66 Am. Jur. 2d Reformation of Instruments § 29 (1973); see also Kegel v. McCormack, 225 Wis. 19, 272 N.W. 650, 653 (Wis. 1937) (stating that "there seems to be no doubt that a negotiable instrument may be reformed as between the original parties as may any other simple contract and that reformation will be decreed upon the same grounds as reformation is decreed in other cases."). The dissent, however, now opines that such an action is limited to instances where the check states the wrong amount or payee and in any event, is extinguished once the check has been cashed or paid. See dissent opinion at 10. Our research has failed to disclose any authority in support of such limitations and we decline to impose any in the first instance. Although it is certainly true that reformation cannot be used to create a new agreement between the parties, reformation is available to reform any written instrument whether executed or executory. See 9 Fla. Jur. 2d Cancellation, Rescission, and Reformation of Instruments, § 54 (1997).  [*11]  


n4 In so holding, of course, we express no opinion as to the merits of this count at this juncture.

n5 We note in passing that the statute of frauds does not bar an action for reformation. "As reformation does not 'charge' the other party with enforcement of the agreement, the statute of frauds has no effect on an action to reform a written document." Smith, 675 So. 2d at 153. (citations omitted).
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Reversed and remanded.

SORONDO, J., concurs.
CONCURBY:   COPE (In Part)
DISSENTBY:   COPE (In Part)
DISSENT:   COPE, J. (concurring in part and dissenting in part).

Upon consideration of the appellant's motion for rehearing, I withdraw my separate opinion filed March 3, 1999, and substitute the following opinion:

I concur on all except the reformation claim. Reformation is not a proper remedy here.

I agree with the majority that a check may be the subject of reformation action. See majority opinion at 8 n.3. If a check stated the wrong amount or payee, it could be reformed to correct the error. *

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

* Since checks are usually presented promptly for payment, there would rarely be a case where reformation would be a practical remedy.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [*12]  

The claim in this case is that an already-paid check can be "reformed" so as to change it into a completely different instrument: a promissory note. This is the legal equivalent of turning a frog into a prince. It is not a proper function for a reformation action.

Let us examine the facts. In September 1995, defendant Patricia Kolski wrote a check for $ 1200 to plaintiff Jennie Kolski. This was an interest payment: the notation on the check indicated " 1/2 yr. due 10/95 at 6%."

Plaintiff cashed the check. The $ 1200 has been paid, and the check is defunct.

In her reformation claim, plaintiff asks the trial court to add to the margin of the check the following language: "$ 40,000 demand obligation." By this technique plaintiff proposes to change an already-paid interest check for $ 1200 into a promissory note for a principal amount of $ 40,000. This cannot be done.


The purpose of a reformation action is to correct an error in the original instrument. See Smith v. Royal Automotive Group, Inc., 675 So. 2d 144, 150 (Fla. 5th DCA 1996); Alexander v. Kirkham, 365 So. 2d 1038, 1040 (Fla. 3d DCA 1978); see also Providence Square Association, Inc. v. Biancardi, 507 So. 2d 1366, 1370 (Fla. 1987).

Reformation cannot be used to make a new agreement between the parties. See Southern Lead Corp. v. Glass, 103 Fla. 657, 138 So. 59, 61 (1931). It follows that reformation cannot be employed to transform a dead check for a $ 1200 interest payment into a live promissory note for $ 40,000.
 
 
 
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1999 Fla. App. LEXIS 1393,*;727 So. 2d 299;
24 Fla. L. Weekly D 435
DELUXE MOTEL, INC., HARISH A. PATEL, et al., Appellant, v. NATVERLAL K. PATEL & KALAVATI N. PATEL, Appellee.
CASE NO. 97-2830
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
727 So. 2d 299;1999 Fla. App. LEXIS 1393;24 Fla. L. Weekly D 435
    February 12, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication March 3, 1999.
 PRIOR HISTORY:   Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.
DISPOSITION:   REVERSED and REMANDED for further proceedings consistent with this opinion.
COUNSEL:   Harry Hackney of Harry T. Hackney, P.A., Tavares, for Appellants.
 
Fred Morrison of McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A., Leesburg, for Appellee.
JUDGES:   COBB, THOMPSON and ANTOON, JJ., concur.
 OPINION:   PER CURIAM.

This is an appeal from a summary judgment foreclosing a purchase money mortgage and awarding a money judgment on an unsecured promissory note.

The sellers, N. Patel and K. Patel, his wife, sold a motel to Deluxe Motel, Inc., H. Patel and H. Dhutia (hereinafter the buyers) in 1993, taking back a note and mortgage in the amount of $ 315,000.00 and an unsecured note in the amount of $ 15,000.00. The sellers sued on the unsecured note when it came due three years after the sale and, in a second count, for the unpaid installments on the mortgage note, but elected not to accelerate the latter.

The buyers filed an answer with affirmative defenses and counterclaimed for rescission and damages for fraud. The buyers alleged,  [*2]  inter alia, fraud in the inducement - - i.e., that the sellers misrepresented the condition, income, expenses, and profits of the motel for the express purpose of inducing them to enter the transaction and they justifiably relied on the misrepresentations. More specifically, the buyers alleged that the sellers represented (1) that the operating expenses for the motel were $ 5,165.00 per month, when in actuality they were $ 8,000.00 per month; (2) that the pool had been repaired recently and was in good condition; (3) that $ 37,000.00 in repairs had been made to the motel, and that this expenditure was the reason for the 1991 tax loss; (4) that the roof had been replaced recently at a cost of $ 75,000.00, when it actually was repaired in 1986 at a cost of $ 17,000.00 to $ 18,000.00; and (5) that the motel had been "under management" from 1986 to 1991, when in fact the motel had been sold to another party who deeded it back to the sellers in lieu of foreclosure.

The sellers filed an amended complaint seeking acceleration and foreclosure of the mortgage given by the buyers in addition to their damage claims. Based upon an affidavit attesting to the facts alleged in their amended  [*3]  complaint, the sellers moved for summary judgment. In opposition, the buyers provided an affidavit attesting to the facts alleged in their answer, affirmative defenses, and counterclaim.

At the hearing the sellers argued that they were entitled to summary judgment because: (1) whether the motel previously had been sold or was under a management contract was immaterial; (2) the allegations about the pool were immaterial given the monetary size of the transaction, and any defect in the pool could have been discovered by an inspection; (3) there was no showing that the statement of costs given by the sellers to the buyers was false, because the mere fact that the buyers incurred greater costs when they operated the motel does not necessarily show that the statement was false; (4) the economic loss doctrine precluded relief for the buyers; (5) an "as is" clause and an integration clause in the contract preclude relief for the buyers. These arguments were more expansive than those contained in the written motion for summary judgment, which, fairly read, only argued as grounds for summary judgment the "as is" and integration clauses in the purchase contract.

The trial court entered summary  [*4]  final judgment for the sellers, and this appeal ensued.

The summary judgment entered below was based primarily on two paragraphs in the sale contract. Regarding the integration clause the contract provides:

U. OTHER AGREEMENTS. This Contract sets forth the entire understanding of the parties hereto and there are no other agreements or representations, prior or present, which shall be binding on Seller or Buyer unless specifically included in this Contract. Any prior or present representations, negotiations or agreements between the parties which are not specifically set forth herein are deemed to have merged herein and are extinguished hereby to the extent not contained herein. This Contract may not be amended in any manner other than by written instrument signed by all parties hereto, and no other modification (whether oral, by course of conduct or otherwise) shall be binding on any party.
 
The "as is" clause provides:
 
M. CONDITION OF PROPERTY: Buyer acknowledges having inspected the Property personally, prior to signing this Contract. Based on the inspection, BUYER AGREES THAT HE IS PURCHASING THE PROPERTY, REAL AND PERSONAL, IN ITS AS-IS CONDITION, AND THAT ALL WARRANTIES  [*5]  OF ANY NATURE WITH REGARD TO THE PHYSICAL CONDITION OF THE PROPERTY, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED, AND WHETHER OF HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY EXPRESSED OR IMPLIED WARRANTIES AGAINST CONDITIONS NOT READILY APPARENT, ARE HEREBY WAIVED BY BUYER AND DISCLAIMED BY SELLER. (Emphasis in original).

The parties to this appeal cite two Florida Supreme cases which seem to be pertinent to the issue but are at odds with each other. In Cassara v. Bowman, 136 Fla. 302, 186 So. 514 (Fla. 1939), cited by the sellers, a lessee sued for rescission of lease and a refund of rent. The lessee alleged that the lessor had misrepresented the profit he had made during the year preceding execution of the lease. The lease contained an integration clause representing that it contained the entire contract between the parties and that no oral representations, promises, undertakings or acts had been done or taken that could vary, alter or modify the terms of the lease in any manner. The supreme court found that the integration clause in the lease foreclosed any right on the part of the lessee to claim  [*6]  a forfeiture or rescission of the lease because of any oral representations preceding the execution of the lease.

On the other hand, in Oceanic Villas, Inc. v. Godson, 148 Fla. 454, 4 So. 2d 689 (Fla. 1941), the lessee sought to rescind a 99-year lease, and alleged that the lessor procured the execution of the lease by false and fraudulent representations of fact as to the gross earnings of the property over certain designated periods before the time of the entering into the lease. The lessor, on the other hand, claimed that the lessee was estopped to allege fraud because of the following clause of the lease:

It is distinctly understood and agreed that the Lessee herein accepts the property herein leased and demised in its present condition, being governed by its own personal inspection of the premises, and in executing this lease it has not been governed or influenced by any representations of the Lessors as to the age and condition, or character of improvements situated upon said property, or as to the earning capacity thereof, and Lessee is guided in making this lease in accordance with the present terms only by its own judgment and without any influence, representation,  [*7]  fraud or duress of any nature on the part of the Lessors, and that the Lessee herein shall under no circumstances assert or maintain any claims for damages against the Lessors by reason of any present or future condition of improvements or buildings, if any, situated upon the above described property, and that no verbal agreements, stipulations, reservations, exceptions or conditions whatsoever have been made or entered into in regard to the above described property, which will in any way vary, contradict or impair the validity of this lease, or of any of the terms and conditions herein contained.

In Oceanic Villas, the supreme court rejected the lessor's estoppel argument and held that if the lease was procured by fraud and misrepresentation as to a material fact, the truth or falsity of which was known only to the lessor, then that fraudulent misrepresentation vitiated every part of the lease and the lessee was not bound by the quoted clause. The Oceanic Villas opinion did not meaningfully distinguish its prior opinion in Cassara, merely stating that there were factual differentiations.
 
We cannot reconcile Cassara and Oceanic Villas. In both cases the lessees  [*8]  sought to have contracts rescinded based on misrepresentation regarding the previous incomes of the properties. Cassara seems to have held that where the merger clause states that there were no representations other than those written in the contract, a party waives reliance on any misrepresentations not in the contract. In Oceanic Villas, however, the court seemed to say that fraudulent representations are waived only if the contract so states in explicit fashion. We conclude that Oceanic Villas overruled Cassara sub silentio.



The other arguments advanced by the sellers, which were also advanced below, should not be considered.
As pointed out by the buyers, Rule 1.510(c), Florida Rules of Civil Procedure, requires the movant to "state with particularity the grounds upon which [the motion] is based and the substantial matters of law to be argued."
This rule is designed to prevent "ambush" by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing. The City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283 (Fla. 4th DCA 1995).

Accordingly, the trial court erred to the extent that, in entering judgment  [*9]  for the sellers, it relied on the arguments made at the hearing but not in the motion. See Gulf Insurance Co. v. Stofman, 664 So. 2d 1083 (Fla. 4th DCA 1995).

REVERSED and REMANDED for further proceedings consistent with this opinion.
 
COBB, THOMPSON and ANTOON, JJ., concur.


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1999 Fla. App. LEXIS 858,*;724 So. 2d 1266;
24 Fla. L. Weekly D 328
ALAN R. TRUSTMAN, Appellant, vs. PHYLLIS T. GELFMAN and MORTON MYERSON, etc., Appellees.
CASE NO. 98-1377
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
724 So. 2d 1266;1999 Fla. App. LEXIS 858;24 Fla. L. Weekly D 328
    February 3, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Released for Publication February 19, 1999.
 PRIOR HISTORY:   An Appeal from the Circuit Court for Dade County, David L. Tobin, Judge. LOWER TRIBUNAL NO. 97-12501.
DISPOSITION:   AFFIRMED.
COUNSEL:   Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., and Paul S. Berger and David A. Friedman, for appellant.
 
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel and Elliot H. Scherker and Holly R. Skolnick, for appellees.
JUDGES:   Before JORGENSON, GERSTEN, and GODERICH, JJ.
OPINION:   PER CURIAM.

Alan Trustman appeals from an order of final summary judgment in a probate action seeking to impose a resulting trust against his father's estate. We affirm.


The trial court properly entered summary judgment for the estate, as the action was barred by laches. Section 95.11(6), Florida Statutes (1997), provides:

Laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his or her rights and whether the person sought to be held liable is injured or prejudiced by the delay.

 
Pursuant to sections  [*2]  95.11(6) and 95.11(3)(k) (a legal or equitable action on a contract, obligation, or liability not founded on a written instrument), Trustman had to assert a resulting trust within four years of the origin of the claim. According to the allegations of Trustman's own complaint, his father's repudiation of the alleged oral agreement that gave rise to the claim for a resulting trust occurred approximately thirty-five years ago. Under either the common law laches doctrine or the statutory laches provision, Trustman's claim for a resulting trust was barred.

AFFIRMED.



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1999 Fla. App. LEXIS 162,*;732 So. 2d 1092;
24 Fla. L. Weekly D 195
JOHN H. COX and EDWARD BARTOLOZZI, Appellants, v. CSX INTERMODAL, INC. and HELEN VENSON, Appellees.
CASE NO. 96-4514
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
732 So. 2d 1092;1999 Fla. App. LEXIS 162;24 Fla. L. Weekly D 195
       January 13, 1999, Opinion Filed
SUBSEQUENT HISTORY:    [*1]  Rehearing Denied April 19, 1999. Released for Publication May 5, 1999. Petition for Review Denied November 4, 1999, Reported at: 1999 Fla. LEXIS 2005.
 PRIOR HISTORY:   An appeal from the Circuit Court for Duval County. Michael R. Weatherby, Judge.
DISPOSITION:   Affirmed in part, reversed in part, and remanded.
COUNSEL:   Sharon Lee Stedman, Orlando, for Appellants.
 
Scott S. Cairns of McGuire, Woods, Battle & Boothe, Jacksonville; Kent A. Gardiner, Alexandre de Gramont and David M. Pfefferkorn of Crowell & Moring, Washington, D.C., for Appellees.
JUDGES:   VAN NORTWICK, J., BOOTH, J., CONCURS, AND COSTELLO, Dedee S., Associate Judge, CONCURS AND DISSENTS WITH WRITTEN OPINION.
OPINIONBY:   VAN NORTWICK
 OPINION:   VAN NORTWICK, J.

John H. Cox and Edward Bartolozzi, truck owners and operators who entered into contracts with appellee CSX Intermodal, Inc. (CSXI) to haul freight to and from the CSXI terminal in Orlando, appeal a summary final judgment entered in favor of appellees, CSXI and Helen Venson, a CSXI employee, in the appellants' action for breach of contract against CSXI and tortious interference against Ms. Venson. For the reasons that follow, we affirm the summary judgment as to appellee Venson and affirm in part as to appellee CSXI. We reverse in part as to CSXI, however,  [*2]  because we find issues of fact concerning whether CSXI breached the implied covenant of good faith and fair dealing applicable to the parties' contractual relationship.
 
Factual and Procedural Background

Appellants entered into separate, but identical, pre-printed form contracts with CSXI in which they agreed to haul freight to and from the CSXI terminal in Orlando, Florida. Under the terms of these agreements, CSXI gained exclusive rights to appellants' transport services. The contract terms required appellants to operate solely at the direction of CSXI, and permitted appellants to transport only CSXI freight, or freight specified by CSXI.
 
In addition, paragraph 4 of each contract between appellants and
 
CSXI provides that:

4. CSXI shall make commodities available from time to time for transport by CONTRACTOR, but this Agreement shall in no way be construed as an agreement by CSXI to furnish, nor by
 
CONTRACTOR to accept, any specific amount of freight or number of loads for transport by
 
CONTRACTOR at any particular time or to any particular place.

In November 1995, appellants filed suit against CSXI for breach of contract and against Helen Venson, individually,  [*3]  for tortious interference with a business relationship. The breach of contract counts alleged that CSXI breached its contract with appellants by allowing its employee, Ms. Venson, to assign loads with the deliberate intent to withhold lucrative, better paying loads from appellants, and to assign only low-paying loads to them; and by failing to insure that loads were fairly distributed among all truck owners/operators. The tortious interference counts alleged that Ms. Venson systematically assigned more lucrative, better paying loads to specific owners/operators, and that her disparate assignment of loads interfered with appellants' relationship with CSXI, damaged appellants by reducing their income, and denied appellants the benefit of their bargain.

Thereafter, CSXI and Ms. Venson filed a joint motion for summary judgment on both the breach of contract claims and the tortious interference claims. With respect to the breach of contract claim, appellees argued that the parties had completed discovery and that, based on the undisputed facts, appellants could not make out a breach of contract claim against CSXI as a matter of law. Appellees asserted that the contract between CSXI and  [*4]  appellants gave CSXI "complete discretion as to whether and how it assigns freight loads to its independent contractors," and that, under the plain terms of the contract, CSXI had no obligation to assign any particular type or number of loads to any contractor.

With respect to the tortious interference claims, appellees asserted entitlement to summary judgment on the grounds that the contract was not breached, thus Ms. Venson could not as a matter of law have interfered with the contract. Appellees further argued that, as an employee of the contracting party, Ms. Venson must be considered a party to the contract and that she could not be sued for tortiously interfering with her own contract as a matter of law.

In their memorandum of law in support of summary judgment, appellees set forth various reasons why CSXI must have absolute discretion in assigning loads. Appellees maintained that CSXI must have discretion to assign particular loads to particular drivers (i) to ensure that a particular driver's equipment is appropriate to carry the type of load contemplated; (ii) to send a closer driver to a "pick-up" site when it would be unreasonable to send a different driver from a longer  [*5]  distance; or (iii) to gratify a customer's request that a specific driver carry that particular customer's load, or that a specific driver not carry the customer's load.

In opposition to the summary judgment motion, appellants contended that the contract had a latent ambiguity, in that the failure to specify the nature or method of assignment of loads made the contract susceptible to different constructions. Appellants further argued that, in addition to their own depositions, they presented competent evidence in the deposition transcripts of other witnesses which satisfied the requirement to demonstrate ambiguity by competent evidence and which demonstrated that the course of dealing between CSXI and the truckers with whom it contracted had created a "first come, first serve" dispatch policy, which had been breached by Ms. Venson's actions. Finally, appellants argued that, even if CSXI possessed substantial discretion to assign loads under the contract, they presented evidence that Ms. Venson, acting on behalf of CSXI, exercised that discretion in an arbitrary, fanciful and unreasonable manner.

The trial court entered summary final judgment in favor of both CSXI and Ms. Venson.  [*6]  The trial court concluded the contract "was clear and unambiguous on its face, and plainly bars Plaintiffs' breach of contract claims" against CSXI. The court further found that appellants had failed to provide evidence that Ms. Venson was acting outside the scope of her employment in dispatching loads to them. The court held because there was no genuine issue of fact that Ms. Venson was acting within the scope of her employment with CSXI, she could not be sued for tortiously interfering with a CSXI contract.
 
Standards of Review

Our review of the grant of summary final judgment in this case involves the interplay of several legal principles.
As an initial matter, the standard governing the determination of a motion for summary judgment is well settled. "The purpose of a motion for summary judgment is to determine whether any genuine issues of material fact exist for resolution by the trier of fact." See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757, 758 (Fla. 2d DCA 1995). "A dispute over an issue of material fact is genuine if the evidence would permit a reasonable jury to return a verdict for the party against whom summary judgment is sought." See Camp Creek Hospitality  [*7]  Inns, Inc. v. Sheraton Franchise Corp., ITT, 139 F.3d 1396 (11th Cir. 1998). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
The party moving for summary judgment bears the heavy burden to prove a negative, that is, "the nonexistence of a genuine issue of a material fact." See Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), cert. denied, 232 So. 2d 181 (Fla. 1969); Besco USA Int'l Corp. v. Home Savings of Am. FSB, 675 So. 2d 687, 688 (Fla. 5th DCA 1996). If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied. See Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995).

When a defendant moves for summary judgment, "the function of the court is solely to determine whether the appropriate record presented in support of summary judgment conclusively shows that i the plaintiff cannot prove the claim alleged as a matter of law." Id.
A trial court is not authorized to try or weigh facts in ruling on a motion for summary judgment. See  [*8]  Jones v. Stoutenburgh, 91 So. 2d 299 (Fla. 1956).
Summary judgment should be granted cautiously, with full recognition of the right of a litigant to a jury trial on the merits of his cause. See Vandyk v. Southside Gun, Inc., 638 So. 2d 138, 140 (Fla. 1st DCA 1994); Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., 108 So. 2d 641, 644 (Fla. 1st DCA 1959).


Further, "where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment." See Angell v. Don Jones Ins. Agency, Inc., 620 So. 2d 1012, 1014 (Fla. 2d DCA 1993). Accord Ball v. Florida Podiatrist Trust, 620 So. 2d 1018, 1022 (Fla. 1st DCA 1993).
In such case, "an appellate court is not restricted in its ability to reassess the meaning and effect of a written instrument to reach a conclusion contrary to that of the trial court." Angell, 620 So. 2d at 1014.

Finally, when the language of a contract does not deal in express terms with all aspects of the rights and duties of the parties to the agreement, the language used "should be  [*9]  interpreted as reasonable persons, knowledgeable about the business or industry, would likely interpret them--not some strained interpretation put forth by the drafter." Hussmann Corp. v. UPS Truck Leasing, Inc., 549 So. 2d 215, 217 (Fla. 5th DCA 1989).
 
The Parties' Course of Dealings

The appellants argue that the trial court erred in granting summary judgment because disputed issues of fact exist as to whether the written contracts between CSXI and the appellants were modified by an unwritten CSXI policy governing the assignment of drivers. The appellants concede that the contracts grant CSXI discretion to designate and dispatch commodity loads to particular drivers. They contend, however, that the contracts are silent as to how loads were to be dispatched and that the facts show that CSXI had adopted an unwritten, "first-come, first-serve" policy to assign loads to drivers which had modified the written contract by the parties' course of dealings. It is CSXI's breach of this first-come, first-serve policy which the appellants contend constitutes a breach of the contracts.

Under certain circumstances, written contracts may be modified by a course of dealings, or  [*10]  by the parties' subsequent oral agreement. See Linear Corp. v. Standard Hardware Co., 423 So. 2d 966, 968 (Fla. 1st DCA 1982); Barile Excavating & Pipeline Co., Inc. v. Vacuum Under-Drain, Inc., 362 So. 2d 117, 119 (Fla. 1st DCA 1978)(written contracts can be modified by subsequent oral agreement of the parties; subsequent modification also may result from conduct of the parties); see also Wilson v. Woodward, 602 So. 2d 547, 549-550 (Fla. 2d DCA 1992); Flagship Nat'l Bank v. Gray Distribution Sys., Inc., 485 So. 2d 1336, 1340 (Fla. 3d DCA), rev. denied, 497 So. 2d 1217 (Fla. 1986).
When a course of dealing and the terms of the contract appear to conflict, the parties' practice and the written agre
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rubyruby27
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« Reply #11 on: September 11, 2006, 03:11:33 PM »

§ 65 Partial summary judgment
A partial summary judgment is usually interlocutory in nature and may not be challenged by direct appeal.

An order for partial summary judgment that does not determine the issue of liability but only determines the amount of a debt in a breach of contract suit is not appealable.
Boyd v. Goff, 828 So.2d 468 (Fla. 5th DCA 2002).
But was a final appealable order for which notice of appeal had to be filed within 30 days.


Appealable nonfinal orders are ss. 66 -75

C. APPEALABLE NONFINAL ORDERS
1. In General
§ 66 Generally
The Florida Constitution provides that district courts of appeal may review interlocutory orders in such cases to the extent provided by rules adopted by the Florida Supreme Court. Art. V, s. 4(b)(1), Fla. Const.
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Nonfinal order Appellate Jurisdictional Roadmap Catch-22:
Observation: The Florida Constitution does not authorize the legislature to provide for interlocutory appeals.
Any statute purporting to grant the right to take an interlocutory appeal is merely a declaration of legislative policy and is ineffective to accomplish its purpose; only if the Florida Supreme Court incorporates the statutory language into the appellate rules can appellate jurisdiction be broadened.
2 Osceola County v. Best Diversified, Inc., 830 So.2d 139 (Fla. 5th DCA. 2002)
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Make it simple and straightforward for the less fortunates.

The proceedings to review nonfinal orders is set forth by the Florida Rules of Appellate Procedure.  
3 Fla. R. App. P. 9.130.

District Courts of Appeal shall review, by appeal, nonfinal orders of circuit courts as prescribed by Rule 9.130.
4 Fla. R. App. P. 9.030(b)(1)(B).

Thus, a District Court of Appeal does not have jurisdiction to review by appeal nonfinal orders in civil cases, except as authorized by the Rules of Appellate Procedure governing review of nonfinal orders.
5 City of Tallahassee v. Big Bend PBA, 703 So.2d 1066 (Fla. 1st DCA 1997)

A District Court of Appeal lacks jurisdiction over a nonfinal order without authorization of a rule of appellate procedure or other authorization.
6 Capricorn Marble Co. v. George Hyman Const. Co., 462 So.2d 1208 (Fla. 4th DCA 1985)

The thrust of Rule 9.130 is to restrict the number of appealable nonfinal orders.
7 Travelers Ins. Co. v. Bruns, 443 So.2d 959 (Fla. 1984);
Jenne v. Maranto, 825 So.2d 409 (Fla. 4th DCA 2002);
Vanaman v. Suggs, 767 So.2d 582 (Fla. 5th DCA 2000)

The theory underlying the Rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment.
8 Travelers Ins. Co. v. Bruns, 443 So.2d 959 (Fla. 1984);
Jenne v. Maranto, 825 So.2d 409 (Fla. 4th DCA 2002);

Allowing the appeal of a nonfinal order that does not determine all of the liability issues has the potential of generating an unnecessary number of appeals, even before a final judgment is entered; such orders can be more efficiently reviewed at the conclusion of the trial court’s labor, particularly when the issues are inextricably interwined, and thus prevents piecemeal appellate litigation.
9 Vanaman v. Suggs, 767 So.2d 582 (Fla. 5th DCA 2000)

There are material procedural differences between interlocutory appeals and full appeals from final judgments.
10 Finneran v. Finneran, 137 So.2d 844 (Fla. 2nd DCA 1962)

Whereas a final judgment determines the rights of the parties and generally leaves no issues for further determination, an interlocutory decree is only intermediate in character and does not finally determine or complete the suit but leaves some question in the case open for future determination.
11 Nowlin v. Pickron, 131 So.2d 894 (Fla. 2nd DCA 1961);
Blount v. Hansen, 116 So.2d 250 (Fla. 2nd DCA 1959);

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What general law? Is needs to list those general laws.
Circuit courts are authorized to review by appeal nonfinal orders of lower tribunals as provided by general law.                                                12 Fla. R. App. P. 9.030(c)(1)(B).   Ch. 59???   59.06(1)(a)(1)
Does this mean just the 10 day rule orders?
Or does it include the relief from judgment rule?
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59.06(1)(a)(1)
59.06  Matters reviewable on appeal.--
(1)  WHAT MAY BE ASSIGNED AS ERROR.--All judgments and orders made in any action wherein the trial court:
(a)  May allow or refuse to allow any motion:
1.  For a new trial or rehearing,
2.  For leave to amend pleadings,
3.  For leave to file new or additional pleadings,
4.  To amend the record, or
5.  For continuance of the action; or
(b)  Shall sustain or overrule any motion to dismiss the action

may be assigned as error upon any appeal from the final judgment or order in the action. The appellate court shall hear and determine the matter so assigned under like rules as in other actions.
(2)  EFFECT OF PLEADING OVER OR AMENDING.--Pleading over or amending pleadings after order upon motion to dismiss shall not waive the right to have the judgment or order reviewed.
History.--s. 1, ch. 521, 1853; s. 1, ch. 3430, 1883; RS 1265; GS 1693; RGS 2903; CGL 4608; s. 6, ch. 22854, 1945; s. 2, ch. 71-316.

§ 67 Enumerated categories of permissible nonfinal review
Appeals to the district courts of appeal of nonfinal orders are limited to those that:
(1) determine venue  
1    9.130(a)(3)(A)
(2) grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions;
2    9.130(a)(3)(b)
(3) determine the jurisdiction of the person,
3    9.130(a)(3)(C)(i)
the right to immediate possession of property,
4    9.130(a)(3)(C)(ii)
the right to immediate monetary relief or child custody in family law matters,
5    9.130(a)(3)(C)(iii)
or the entitlement of a party to arbitration,
6    9.130(a)(3)(C)(iv)
that, as a matter of law, a party is not entitled to workers’ compensation immunity;
7    9.130(a)(3)(C)(v)
that a class could be certified;
8    9.130(a)(3)(C)(vi)
or that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;
9   9.130(a)(3)(C)(vii)
or
(4) grant or deny the appointment of a receiver and terminate or refuse to terminate a receivership.
10   9.130(a)(3)(D).

The appealable nonfinal orders listed in the Rule are exclusive.
11  2 Padavano, Florida Practice: Florida Appellate Practice (2004 ed.), s. 4.4

Thus, a district court’s appellate jurisdiction to review nonfinal orders is limited to those categories of orders identified in the Rule.
12 Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2nd DCA 2002), review granted, 852 So.2d 861 (Fla. 2003);
Fisher v. International Longshoremen’s Ass’n, 827 So.2d 1096 (Fla.1st DCA 2002)

The enumerated categories of permissible nonfinal review stated in the governing Rule must be limited to their plain meaning.
13 Jenne v. Maranto, 825 So.2d 409 (Fla. 4th DCA 2002)
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Judges are not authorized to enlarge the provisions of the governing Rule to permit review of nominal orders not specified within its provisions
14 Jenne v. Maranto, 825 So.2d 409 (Fla. 4th DCA 2002)
----------------------------------------------------------------------
Civil nonfinal orders other than those specifically listed are not reviewable by appeal.
15   2 Padavano, Florida Practice: Florida Appellate Practice (2004 ed.), s. 4.4

A trial court’s granting of a motion for rehearing is not a final order and thus falls outside the rubric of Rule 9.130(a)(3), which specifies immediately appealable nonfinal orders.
16 Wharton v. DuBose, 458 So.2d 411 (Fla. 4th DCA 1984)
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The provision of the Florida Rules of Appellate Procedure enumerating the categories of permissible nonfinal review by a district court of appeal provides that appeals to the circuit court of nonfinal orders are permitted when provided by general law.
Fla. R. App. P. 9.130(a)(1).
---------------------------------------------------------------------------------------
----------------------
Appealable Non-Final Orders
s.66 Generally
Nonfinal orders are generally reviewable only on plenary appeal of final order disposing of case.
Fassy v. Crowley, 884 So.2d 359 (Fla. App. 2 Dist. 2004)

Jurisdiction to hear an appeal from a nonfinal order is limited to the kinds of orders referred to in appellate rule governing proceedings to review nonfinal orders. F.S.A. R.App.P. Rule 9.130
Cotton States Mut. Ins. v. D’Alto, 879 So.2d 67 (Fla. App. 1 Dist. 2004)

s.67 Enumerated categories of permissible nonfinal review
Appellate rule governing proceedings to review nonfinal orders is designed to reduce the number of appealable pretrial orders and to discourage piecemeal review.
F.S.A. R.App.P. Rule 9.130
Cotton States Mut. Ins. v. D’Alto, 879 So.2d 67 (Fla. App. 1 Dist. 2004)

REDUCE THE NUMBER OF APPEALABLE PRETRIAL ORDERS
DISCOURAGE PIECEMEAL REVIEW
-----------------------------

§ 68 Review on full appeal
The rule relating to the review of nonfinal orders shall not preclude an initial review of a nonfinal order on appeal from the final order in the cause.
1 Fla. R. App. P. 9.130

Thus the failure to take an immediate appeal from a nonfinal order does not bar review of the question on plenary appeal.
2 Investors Associates, Inc. v. Moss, 441 So.2d 1144 (Fla. 3rd DCA 1983)

As otherwise stated, the failure to utilize a right of nonfinal review is entirely irrelevant to waiting for plenary review after the entry of final judgment.
3 Ray v. Thomson-Kernaghan & Co. Ltd., 761 So.2d 1197 (Fla. 4th DCA 2000) (concurring opinion).

A party has the option of seeking review of a nonfinal order on an appeal from the final order.
4 Allen v. TIC Participations Trust, 722 So.2d 260 (Fla. 4th DCA 1998)

An appeal from a final order calls up for review all necessary interlocutory steps leading to that final order, whether they were separately appealable or not.
5 Saul v. Basse, 399 So.2d 130 (Fla. 2nd DCA 1981)

Therefore, the failure to utilize the right to take an interlocutory appeal does not restrict the scope of appellate review when the final order is appealed.
6 Lidsky, Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146 (Fla. 3rd DCA 2002), review denied, 835 So.2d 268 (Fla. 2002)



HERE IT IS.
§ 78 ORDERS ON MOTIONS FOR RELIEF FROM JUDGMENT
Appeal and Error 82(3)

Under the Florida Rules of Appellate Procedure, orders entered on motions filed under the Florida Rule of Civil Procedure 1.540, Small Claim Rule 7.190, and Florida Family Law Rule of Procedure 12.540 are reviewable by the method prescribed by Florida Rule of Appellate Procedure 9.130.
1 Fla. R. App. P. 9.130(a)(5)

Thus, the Rules of Appellate Procedure grant a right of review of orders on motions seeking relief from a previous court order on the grounds of mistake, fraud, satisfaction of judgment, or other grounds listed in the Florida Rule of Civil Procedure 1.540.
2 Committee Notes to the Fla. R. App. P. 9.130(a)(5).

Because a void judgment is a ground for relief from under the latter Rule, it is an appealable, nonfinal order under the governing rules of appellate procedure.
3 Onofrio v. Onofrio, 561 So.2d 1200 (Fla. 3rd DCA 1990) (order denying judgment  debtor’s motion for summary judgment in proceeding to set aside judgment as void).

Although nonfinal orders vacating final judgments under the Florida Rules of Civil Procedure 1.540 are reviewable under the Florida Rule of Appellate Procedure 9.130(a)(5), nonfinal orders setting aside defaults under the Florida Rules of Civil Procedure 1.500(d) are not reviewable.
4 Graham Electronics, Inc. v. Keeser, 433 So.2d 34 (Fla. 5th DCA 1983);


SECOND DISTRICT VIEW of 9.130(a)(5)
One reading of the Florida Rule of Appellate Procedure 9.130, given by a Florida District Court of Appeal of the Second District, is that it unequivocally specifies that orders entered under Rule 1.540 constitute nonfinal orders that are subject to review under Rule 9.130. Thus, Rule 9.130(a)(1) states, “This rule applies to review of the nonfinal orders authorized herein in the district courts of appeal and the circuit courts.”
Subsection (5) of the Rule then reads, “Orders entered on motions filed pursuant to Fla. R. Civ. P. 1.540 are reviewable by the method prescribed by this Rule.”
5 Potucek v. Smeja, 419 So.2d 1192 (Fla. 2nd DCA 1982).

So 9.130(a)(1) says nonfinal, but not 9.130(a)(5)

THIRD DISTRICT VIEW of 9.130(a)(5)
A different reading of the Rule was given subsequently by the District Court of Appeal of the Third District, wherein the Court noted that the Florida Rule of Appellate Procedure 9.103(a)(5) merely declares the method by which orders on Rule 1.540 motion are to be appealed; it does not specify that such orders are nonfinal. Given the limited nature of the inquiry and the process attendant to 1.540 motions, the abbreviated method of review set forth in Appellate Rule 9.130 is more appropriate for orders entered on 1.540 motions than the plenary method set forth in Appellate Rule 9.110. Nothing in the language of Rule 9.130 indicates that the supreme court intended anything else.
6 Franscisco v. Victoria Marine Shipping, Inc. 486 So.2d 1386 (Fla. 3rd DCA 1986).

2nd DCA says they are unequivocally nonfinal.
3rd DCA says 9.130 is not about finality but a method of appeal more appropriate for Rule 1.540 motions. 3rd is correct.
The 2nd DCA view creates a roadmap nightmare given the Blore v. Fierro amendment to the Rules of Appellate Procedure.
Appellate rules that says cert unless a 9.130 order, thus precluding cert.


SO I HAD TO SPEND COUNTLESS TIME RESEARCH ALL OF THIS AND THUS STARVING THE CASE IF CHIEF OF RESEARCH WHERE I COULD HAVE PROPERLY PRESENTED MY ARGUMENTS BUT DUE TO THIS DIVERSION HAD TO SLAP IT TOGETHER WITH WHOLLY INDEQUATE RESEARCH WHICH RESULTS IN GETTING UNFAIRLY JUDGED.

s.78 Orders on motions for relief from judgment
An order entered on a motion to vacate a non-final order, even where the motion mislabels the non-final order as final, is not reviewable. F.S.A. R.App.P. Rule 9.130(a)(5).
Bennett’s Leasing, inc. v. First Street Mortg. Corp., 870 So.2d 93 (Fla. App. 1 Dist. 2003)

Arguments raised for the first time on appeal are not preserved and are therefore waived.
Lloyd v. State, 876 So.2d 1227 (Fla. App. 4 Dist. 2004)
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Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented first to the trial court.
Richardson v. State, 875 so.2d 673 (Fla. 1st DCA 2004)
Issue of Jurisdiction is issue of fundamental error.
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D. ORDERS AFTER JUDGMENT
Statutory References § 59.04, Fla. Stat.;
Court Rules Fla.R.App.P. 9.130
§ 79 Generally
The Florida Rules of Appellate Procedure provide that nonfinal orders entered after a final order on motions that suspend rendition are not reviewable, provided that orders granting motions for new trial in jury and nonjury cases are reviewable by the method prescribed in Rule 9.110.
Other nonfinal orders entered after final order on authorized motions are reviewable by the method prescribed by Rule 9.130.
1 Fla. R. App. P. 9.130(a)(4)

The Rule authorizes civil appeals from orders entered after rendition of the final order or judgment, and it applies to orders on all authorized motions except those that suspend rendition of the final order.

Thus an order on a motion filed after the final order or judgment is appealable in its own right as a nonfinal order as long as it is authorized in the proceeding in question and as long as it is not listed in Rule 9.020(h) among the orders that suspend rendition.

A trial court’s order denying a motion for contempt is reviewable under the Rule as a nonfinal, appealable order.
3 Laguardia v. Tompkins Investment Group, Inc. 715 So.2d 1057 (Fla. 5th DCA 1998);
Berman v. Berman, 591 So.2d 1142 (Fla. 4th DCA 1992).

An order denying a motion for a protective order in supplementary proceedings following entry of final judgment is appealable as an order or an authorized motion entered after final order.
4 Real Estate Corp. of Florida, N.V. v. Dawn Developers, Inc., 644 So.2d 145 (Fla. 5th DCA 1994);
Mogul v. Fodiman, 406 so.2d 1225 (Fla. 5th DCA 1981).

Alleged errors in an ancillary proceeding begun after a judgment are not reviewable in an appeal from the final judgment in the main proceeding,
5 Warriner v. Beneficial Finance Co.., 153 So.2d 758 (Fla. 3rd DCA 1963).

And an appeal from an order made after a final decree does not bring up the final decree itself for review.
6 Burnup v. Bagley, 100 So.2d 622 (Fla. 1958);
Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943).

Not all orders entered subsequent to a final judgment are interlocutory. In a proper case, an order entered after final judgment may of itself constitute a distinct adjudication so final in nature as to partake of the character of a final judgment and may, therefore, sustain a full appeal on that basis.
7 Oxford v. Polk Federal Sav. & Loan Ass’n of Lakeland, 147 So.2d 603 (Fla. 2nd DCA 1962);
Finneran v. Finneran, 137 So.2d 844 (Fla. 2nd DCA 1962);
Shannon v. Shannon, 136 So.2d 253 (Fla. 1st DCA 1962).

Where a postjudgment motion in effect triggers a new proceeding with disputed issues to be resolved by a trial and that will culminate in a final order, the issues raised will be appealable when the final judgment is entered.
8 Philip Morris, Inc. v. Jett, 802 So.2d 353 (Fla. 3rd DCA 2001, review denied, 821 So.2d 300 (Fla. 2002);

Where a postjudgment motion in effect initiates a new proceeding that will culminate in a new final order, the nonfinal orders entered in the new proceeding must be considered nonfinal orders entered prior ro the final order, not after the final order, and accordingly are not appealable as nonfinal orders entered after a final order under Rule 9.130(a)(4).
9 Grafman v. Grafman, 488 So.2d 115 (Fla. 3rd DCA 1986);

s. 80 Order on motion to set aside or vacate default judgment
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If the court can’t tell me, then at least allow me the time I need to be able to research it.
Why must I surrender a right without any explanation?
--------------------------------------------------------
An order granting a default is appealable as an order determining liability in favor of a party seeking affirmative relief.
1 Goch v. Horning, 579 So.2d 377 (Fla. 4th DCA 1991);

An order denying a motion to vacate a default determines liability just as certainly as does an order of default and is, therefore, appealable under the Rules of Appellate Procedure.
2 Sunny South Aircraft Service, Inc. v. Inversiones, 1120 C.A., 417 So.2d 676 (Fla. 1982);
Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla. 1982);
French v. Wellman, 413 So.2d 143 (Fla. 5th DCA 1982);

Any order finally disposing of an amended motion to vacate a judgment, as authorized by an order of dismissal without prejudice, would be appealable as a final order, although the time for taking such appeal would not be stayed by a motion for a rehearing filed thereafter.
3 Bastida v. Vitaver, 590 So.2d 1092 (Fla. 3rd DCA 1991);

An order setting aside a default before a judgment is not appealable under Rule 9.130(a)(4),
4 Mogul v. Fodiman, 406 So.2d 1225 (Fla. 5th DCA 1981);
Yates v. Roller Skating Rinks Inc., 379 So.2d 1333 (Fla. 5th DCA 1980);

but an order vacating a default, and the final judgment based on it, is appealable under the Rule.
5 Mogul v. Fodiman, 406 So.2d 1225 (Fla. 5th DCA 1981);
Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So.2d 558 (Fla. 3rd DCA 1981);

A trial court’s order on a motion to set aside a clerk’s default is not an appealable, nonfinal order under the rule governing proceedings to review nonfinal orders.
6 Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003);
BMW Financial Services NA, LLC v. Alger, 834 So.2d 408 (Fla. 5th DCA 2003);


§ 82 Order for new trial
Appeal and Error 70(9), 110

It is provided by statute that, on the entry of an order granting a new trial, the party aggrieved may prosecute an appeal to the proper appellate court without waiting for final judgment.
1 § 59.04, Fla. Stat.

Observation: the statute does not supply to an order granting a new trial when no verdict is returned. In such case, the defendant is not aggrieved by the order, which follows as of course after a mistrial.
2 Gore v. Hansen, 59 So.2d 538, 40 A.L.R.2d 1281 (Fla. 1952).

That provision is incorporated in Rule 9.130(a)(4),
3 Hill v. American Medical Affiliates, Inc., 387 So.2d 1056 (Fla. 2nd DCA 1980);

which provides that nonfinal orders entered after final order on motions that suspend rendition are not reviewable, provided that orders granting motions for a new trial in jury and nonjury cases are reviewable by the method prescribed in Rule 9.110.
4 FlaRAppP 9.130(a)(4)

An order granting a motion for a new trial is appealable as a final order.
5 Saye v. Pieschacon, 750 So.2d 759 (Fla. 1st DCA 2000);
Maxwell v. Nugget Oil, Inc., 744 So.2d 1203 (Fla. 1st DCA 1999);
Mann v. Brantley, 732 So.2d 1090 (Fla. 4th DCA 1998);

An order granting a new trial is appealable as a matter of substantive law, although it is technically neither interlocutory nor final;
6 Bowen v. Willard, 340 So.2d 110 (Fla. 1976);

the order granting a new trial, although nonfinal, is an exception to the general rule that no appeal lies from a nonfinal order.
7 Stanberry v. Excambia County, 813 So.2d 278 (Fla. 1st DCA 2002);

When an order granting a remittitur or, in the alternative, a new trial is entered, a subsequent rejection of the remittitur can transform the order into an order granting a new trial that may be appealed.
8 Stanberry v. Excambia County, 813 So.2d 278 (Fla. 1st DCA 2002);

An order denying a motion for a new trial is neither appealable as a final order nor as a nonfinal order.
9 Beck v. Hotchkiss, 75 So.2d 289 (Fla. 1954);
Saye v. Pieschacon, 750 So.2d 759 (Fla. 1st DCA 2000);
Maxwell v. Nugget Oil, Inc., 744 So.2d 1203 (Fla. 1st DCA 1999);
Haley v. Milam, 100 So.2d 643 (Fla. 1st DCA 1958);

Where a postjudgment motion in effect initiates a new proceeding that will culminate in a new final order, the nonfinal orders entered in the new proceeding must be considered nonfinal orders entered prior to final order, not after final order, and accordingly are not appealable as nonfinal orders entered after the final order.
10 Philip Morris Inc. v. Jett, 802 So.2d 353 (Fla. 3rd DCA 2001), review denied, 821 So.2d 300 (Fla. 2002);

V. PRESERVING QUESTIONS BELOW
A. GENERALLY
1. In General
§ 96 Generally
As a general rule of appellate review, questions not timely raised and ruled upon in the trial court will not be considered on appeal.
1 Dade County School Bd. v/ Radio Station WQBA, 731 So.2d 638, 135 Ed. Law Rep. 268 (Fla. 1999);
Morales v. Sperry Rand Corp., 601 So.2d 538 (Fla. 1992);
McGurn v. Scott, 596 So.2d 1042 (Fla. 1992);
Marriott International, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003);
Estate of Herrera v. Berlo Industries, Inc., 840 So.2d 272 (Fla. 3rd DCA 2003);
J.T.A. Factors, Inc. v. Philcon Services, Inc., 820 So.2d 367 (Fla. 3rd DCA 2002);
Perez v. Winn-Dixie, 639 So.2d 109 (Fla. 1st DCA 1994);
Parlier v. Eagle-Picher Industries, Inc., 622 So.2d 479 (Fla. 5th DCA 1993), on reh’g, (Aug. 20, 1993);

As similarly stated, an appellate court will not decide an issue that was not presented or not ruled upon by the trial court in the first instance but is raised for the first time on appeal.
2 Saka v. Saka, 831 So.2d 709 (Fla. 3rd DCA 2002);
Alamagan Corp. v. Daniels Group, Inc., 809 So.2d 22 (Fla. 3rd DCA 2002);
Florida Emergency Physicians-Kang and Asssociates, M.D., P.A. v. Parker, 800 So.2d 631 (Fla. 5th DCA 2001);
Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3rd DCA 2001);
Mendelson v. Great Western Bank, F.S.B., 712 So.2d 1194 (Fla. 2nd DCA 1998);
Miller v. Miller, 709 So.2d 644 (Fla. 2nd DCA 1998);
Sierra by Sierra v. Public Health Trust of Dade County, 661 So.2d 1296 (Fla. 3rd DCA 1995);
Sparta State Bank v. Pape, 477 So.2d 3 (Fla. 5th DCA 1985);

Observation: It is the function of the appellate court to review errors allegedly committed in the trial court, not to entertain for the first time on appeal issues that the complaining party could have, and should have, but did not, present to the trial court.
3 Florida Emergency Physicians-Kang and Associates, M.D., P.A. v. Parker, 800 So.2d 631 (Fla. 5th DCA 2001);

Arguments not presented to the trial court cannot form the basis for a reversal on appeal.
4 Fouts v. Bolay, 795 So.2d 1116 (Fla. 5th DCA 2001);

§ 97 Waiver or preclusion of issue not preserved below

An argument that was not made in the trial court is waived on appeal.
1 Universal Underwriters Ins. Co. v. Tucker, 736 So.2d 778 (Fla. 4th DCA 1999);

The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error.
2 Keech v. Yousef, 815 So.2d 718 (Fla. 5th DCA 2002), cause dismissed, 829 So.2d 918 (Fla. 2002).

An appellant’s failure to make an argument before the trial court thus precludes him or her from raising the argument for the first time on appeal.
3 Frenz Enterprises, Inc. v. Port Everglades, 746 So.2d 498 (Fla. 4th DCA 1999);

Illustration: The failure to raise an affirmative defense before a trial court considered a motion for summary judgment precluded raising that issue for the first time on appeal.
4 Dober v. Worrell, 401 So.2d 1322 (Fla. 1981);

Although positions that are not presented to the trial court are waived, it is the appellate court’s duty to notice and correct jurisdictional defects or fundamental errors even when they have not been identified by the parties.
5 I.A. v. H.H., 710 So.2d 162 (Fla. 2nd DCA 1998);
 
§ 98 Particular application of general rule

The general rule that questions not timely raised in the trial court will not be considered on appeal applies to questions regarding procedural irregularities that do not fo to the merits of the cause;
1 Gil v. State, 266 So.2d 43 (Fla. 3rd DCA 1972);
Maryland Nat. Ins. Co. v. State for Use and Benefit of Dade County, 243 So.2d 183 (Fla. 3rd DCA 1971);
Smith v. Designers Industries, Inc., 109 So.2d 776 (Fla. 3rd DCA 1959);

claimed error regarding matters that may be dispositive of the issues, such as the sufficiency of the pleadings;
2

the propriety of the nature of the action brought;
3

improper venue;
4

the presentation and proof of affirmative defenses;
5

or questions as to the proper law to be applied
6

A reviewing court will thus decline to address the issue of whether a litigant made a showing of good cause for the disclosure or records regarding an opponent’s prior substance abuse records where the trial court’s ruling was not based on good cause but on the opponent’s failure to raise the psychotherapist-patient privilege until the hearing.
7

§ 99 Constitutional questions

The general rule that questions not timely raised in the trial court will not be considered on appeal applies to constitutional issues that, like any issues, are waived unless they are first presented in the trial court
1

Illustration: A motorist could not raise a claim that the statutory scheme for awarding attorney’s fees following a demand for judgment violated equal protection, because the claim was raised for the first time on appeal.
2

When the constitutionality of a statute is a mixed question of law and fact, involving the existence of valid reasons for the legislation, it is preferable to have a record developed in a lower court before a finder of fact.
3

An appellate court will decline to consider constitutional arguments challenging a statute where the trial court determines that such argument contain mixed questions of law and fact, and the court does not address the arguments but only addresses an alternative claim of facial constitutionality that can be decided without the presentation of evidence.
4

2. Fundamental Error
§ 100 Generally
The doctrine of fundamental error enable one to present a theory for the first time on appeal, notwithstanding the failure to raise it at trial.
1

In other words, fundamental error can be reviewed on appeal without preservation in the trial court.
2

The fundamental error doctrine is a limited exception to the general rule that reviewing courts will not consider points raised for the first time on appeal,
3

and the doctrine should be invoked by appellate courts very guardedly
4

and applies only in rare cases.
5

The doctrine is reversed for the exceedingly unusual case where a substantial injustice would be otherwise perpetrated.
6

§ 101 What constitutes fundamental error

Fundamental error is an error that goes to the foundation of the case or the merits of the cause of action
1 Sanford v. Rubin, 237 So.2d 134 (Fla. 1970);
Saka v. Saka, 831 So.2d 709 (Fla. 3rd DCA 2002);
Coleman Co., Inc. v. Cargil Intern. Corp., 731 So.2d 2 (Fla. 3rd DCA 1998);
Hooters of America, Inc. v. Carolina Wings, Inc., 655 So.2d 1231 (Fla. 1st DCA 1995);
Stevens v. Allegro Leasing, Inc., 562 So.2d 380 (Fla. 4th DCA 1990);

and that would result in a miscarriage of justice if not considered.
2 American Sur. Co. of New York v. Coblentz, 381 F.,2d 185 (5th Cir. 1967);

Observation: Fundamental error refers to error that goes to the very heart of the judicial process, not to mistakes as to which arguably correct law or rule to apply, or as to the application of such a rule of law to the facts in the case.
3 Fleischer v. Fleischer, 586 So.2d 1253 (Fla. 4th DCA 1991);

For error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process.
4 Hooters of America, Inc. v. Carolina Wings, Inc., 655 So.2d 1231 (Fla. 1st DCA 1995);

Thus, fundamental error occurs if the error extinguishes a party’s right to a fair trial or if the error was so prejudicial as to be incurable by rebuke or retraction.
5 Martino v. Metropolitan Dade County, 655 So.2d 151 (Fla. 3rd DCA 1995);

§ 102 Application of fundamental error doctrine

Fundamental error is generally limited to situations in which the trial court granted relief when the party obtaining the relief was, as a matter of law, not entitled to it.
1 O’Brien v. Florida Birth-Related Neurological Injury Compensation Ass’n, 710 So.2d 51 (Fla. 4th DCA 1998);

Errors occurring in the trial process and not going to the merits of the case are generally held not be fundamental.
2 Nelson v. Seldon Cypress Door Co., 78 Fla. 203, 78 Fla. 204, 83 So. 286 (1919);
Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974);
Franklin v. State, 285 So.2d 32 (Fla. 4th DCA 1973);
Russell v. Wainwright, 266 So.2d 375 (Fla. 4th DCA 1972);
Ross v. Florida Sun Life Ins. Co., 124 So.2d 892 (Fla. 2nd DCA 1960);

Illustration: A judge’s absence during videotaped testimony in a civil trial was not fundamental error.
3 Sims v. State Farm Mut. Auto Ins. Co., 748 So.2d 383 (Fla. 3rd DCA 2000);

The constitutionality of a statute does not present a question of fundamental error per se
4 Greene v. Alexander Film co., 65 So.2d 53 (Fla. 1953);
St. Paul Fire & Marine Ins. Co. v. Hodor, 200 So.2d 205 (Fla. 3rd DCA 1967);

although it may be fundamental error under the facts of a particular case.
5 Palm Beach County v. Green, 179 So.2d 356 (Fla. 1965);
Bedenbaugh v. Adams, 88 So.2d 765 (Fla. 1956);
Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1945);
Parker v. Town of Callahan, 115 Fla. 266, 156 So. 334 (1933), amended, 117 Fla. 270, 157 So. 662 (1934);
Haverty v. State, 258 So.2d 18 (Fla. 2nd DCA 1972);

§ 103 Lack of jurisdiction

Lack of jurisdiction in the trial court constitutes fundamental error.
1 Ross v. Florida Sun Life Ins. Co., 124 So.2d 892 (Fla. 2nd DCA 1960);
Ewing v. Dupee, 104 So.2d 672, 76 A.L.R.2d 561 (Fla. 2nd DCA 1958);

Fundamental error exists where the trial court lacks jurisdiction of the parties
2 Anglin v. Mayo, 88 So.2d 918 (Fla. 1956);
Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (!927);
Florio v. State ex rel. Epperson, 119 So.2d 305, 80 A.L.R.2d 1117 (Fla. 2nd DCA 1960);

or of the subject matter of the action.
3 O’Brien v. Florida Birth-Related Neurological Injury Compensation Ass’n, 710 So.2d 51 (Fla. 4th DCA 1998);
Henry’s Drive-In, Inc. v. Ideal Rock Products Co., 140 So.2d 137 (Fla. 3rd DCA 1962);
Florio v. State ex rel. Epperson, 119 So.2d 3005, 80 A.L.R.2d 1117 (Fla. 2nd DCA 1960);

Subject matter jurisdiction cannot be conferred upon a court by consent and therefore the lack of subject matter jurisdiction may be raised for the first time on appeal.
4 MCR Funding v. CMG Funding Corp., 771 So.2d 32 (Fla. 4th DCA 2000);
84 Lumber Co. v. Cooper, 656 So.2d 1297 (Fla. 2nd DCA 1994);
Florida Auto Dealers Industry Den. Trust v. Small, 592 So.2d 1179 (Fla. 1st DCA 1992);
City of Miami v. Cosgrove, 516 So.2d 1125 (Fla. 3rd DCA 1987);

Illustration: The appellant’s failure to question the trial court’s subject matter jurisdiction to entertain as class certification hearing did not preclude the appellate court from addressing the issue for the first time on appeal, where the jurisdictional infirmity appeared on the face of the record.
5 Hoechst Celanese Corp. v. Fry, 693 So.2d 1003 (Fla. 3rd DCA 1997);

§ Waiver of fundamental error

Although a fundamental error may be considered on appeal even though it is not preserved in the trial court, a party may waive a fundamental error and thereby be denied the opportunity to appeal that error.
1 Rollins v. State, 194 So.2d 247 (Fla. 1967);

However, such a waiver of fundamental error may not be implied but must be knowingly expressed.
2 Rollins v. State, 194 So.2d 247 (Fla. 1967);
Reins v. Johnson, 604 So.2d 911 (Fla. 2nd DCA 1992);
Persoff v. Persoff, 589 So.2d 1007 (Fla. 4th DCA 1991);



 
 
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   Re: Questions MSJ
« Reply #79 on: June 29, 2006, 07:41:01 PM » Quote

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s.291 Order granting new trial
A trial court’s discretion to grant a new trial will not be disturbed except on a clear showing of an abuse of that discretion.
Cox v. American Pioneer Life Ins. Co., 626 So.2d 243 (Fla. App. 5 Dist. 1993)

A heavy burden rests on an appellant who seeks to overturn such a ruling since any abuse must be patent from the record.
Castlewood Intern. Corp. v. LaFleur, 322 So.2d 520 (Fla. 1975)

All orders granting a new trial shall specify the specific grounds therefore. If the order granting a new trial is appealed and does not state the specific grounds, the appellate court is required to relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial. Fla. R. Civ. P. 1.530(f)

The procedure is employed to ensure that an appellate court knows the reasons for the trial court’s action before determining whether the trial judge abused his or her discretion.
Prime Motor Inss, Inc. v. Waltman, 480 So.2d 88 (Fla. 1985);
Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978);
Metcalfe v. Metcalfe, 655 So.2d 1251 (Fla. App. 3 Dist. 1995)

To allow appellate courts to make an independent determination of whether a jury of reasonable persons could have returned the verdict without knowing the reasons of the trial judge or applying the appropriate test to determine whether the trial judge abused his or her discretion allows appellate courts to substitute arbitrarily their judgment for that of the trial court. The appellate court is obligated to consider those reasons in determining whether the trial court had abused its discretion in ordering the new trial.
Philon v. Reid, 602 So.2d 648 (Fla. App. 2 Dist. 1992), cause dismissed, 620 So.2d 762 (Fla. 1993).

Where an order grants a new trial on more than one ground, the order will be affirmed if any single ground in support of the order is upheld and is alone sufficient to sustain the order.
Gulf Coast Title Co. v. Walters, 125 Fla. 427, 170 So. 130 (1936);
Beckwith v. Bailey; 119 Fla. 316. 161 So. 576 (1935);
Bullard v. Canale, 260 So.2d 237 (Fla. App. 4 Dist. 1972);  
Florida Power Corp. v. Smith, 202 So.2d 872 (Fla. App. 2 Dist. 1967) (but finding neither ground sufficient);
Autria v. Donovan, 169 So.2d 377 (Fla. App. 2 Dist. 1964).

Where such orders specify only a single ground, the reviewing court is not concerned with the reasons assigned by the trial court in making the order.
Lake Region Paradise Island, Inc. v. Graviss, 335 So.2d 341 (Fla. App. 2 Dist. 1976);
Bullard v. Canale, 260 So.2d 237 (Fla. App. 4 Dist. 1972).


Appeals from Interlocutory Orders, Decisions, and Decrees

The scope of review vested in an appellate court by virtue of an appeal from an interlocutory order or decree is confined to the matters involved in such an order and can extend to a consideration only of the matters to which the order relates.
Hotel-Motel, Restaurant Emp. And Bartenders Union, Local 339 of Broward County v. Black Angus of Lauderhill, Inc., 290 So.2d 479 (Fla. 1974);
Robinson v. Croker, 117 Fla. 582, 158 So. 123 (1934);
Southern Standard Life Ins. co. v. Holloman, 149 So.2d 887 (Fla. App. 1 Dist. 1963);
Jacksonville Expressway Authority v. Bennett, 149 So.2d 74 (Fla. App. 1 Dist. 1963);
Central and Southern Fla. Flood Control Dist. V. Dupuis, 109 So. 2d 596 (Fla. App. 3 Dist. 1959).

Errors assigned to interlocutory orders not specifically appealed from will not be considered by the appellate court.
Glass v. Layton, 140 Fla. 522, 192 So. 330 (1937)

On appeal from an interlocutory order, the appellate court is not authorized to direct the lower court as to how a pending proceeding should be handled except insofar as such proceeding may be affected by errors assigned on appeal and disposed of by the opinion. The appellate court is not justified in anticipating that the lower court will not follow applicable statutes and rules of procedure relating to the final disposition of the case.
Groff G.M.C. Trucks, Inc. v. Driggers, 101 So.2d 58 (Fla. App. 1 Dist. 1958)

The fact that an order of the trial court contains a ruling reviewable by interlocutory appeal does not extend the scope of the appeal to include other rulings contained in the same order.
RD & G Leasing, Inc. v. Stebnicki, 626 So.2d 1002 (Fla. App. 3 Dist. 1993)

The review of an interlocutory order should not be based on the record as it existed when the order was entered, but on the record as it existed when the motion was made.
Chesler v. Hendler, 428 So.2d 730 (Fla. App. 4 Dist. 1983);
Zuckerman v. Professional Writers of Florida, Inc. 398 So.2d 870 (Fla. App. 4 Dist. 1981)

s. 293 Orders on motion to dismiss
On an appeal based on an order overruling a motion to dismiss the complaint, the appellant is confined to the grounds stated in the motion and argued on appeal unless the complaint wholly fails to state a cause of action.  
Balbontin v. Poria, 215 So.2d 732 (Fla. 1968);
Collins v. W.C. Briggs, Inc., 98 Fla. 422, 123 So. 833 (1929);
Cravero Home Bldg. Co. v. Jaffe, 142 So.2d 342 (Fla. App. 3 Dist. 1962)
---------------------------------------------------------
In reviewing the action of a trial court in granting a motion to dismiss a complaint, the appellate court is confined in its consideration to the allegations contained in the complaint, together with the exhibits attached to and made a part of the complaint.
Corbett v. Eastern Air Lines, Inc., 166 So.2d 196 (Fla. App. 1 Dist. 1964);
Carter v. National Auto Ins. Co., 134 So.2d 864 (Fla. App. 1 Dist. 1961)
Mullen v. Mullen, 122 So.2d 488 (Fla. App. 2 Dist. 1960);
Rosin v. Peninsular Life ins. Co., 116 So.2d 798 (Fla. App. 2 Dist. 1960)
----------------------------------------------------------

The scope of the review is whether the complaint, construed in the light most favorable to the plaintiff, is sufficient to state a valid claim,
Lagueere v. City of Coral Springs, 673 So.2d 60 (Fla. App. 4 Dist. 1996);
Caretta Trucking, inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028 (Fla. App. 4 Dist. 1994);
Midflorida Schools Federal Credit Union v. Fansler, 404 So.2d 1178 (Fla. App. 2 Dist. 1981);
Connelly v. Merritt, 273 So.2d 7 (Fla. App. 1 Dist. 1973).

And the standard of review is de novo.
U.S. Project Management, inc. v. Parc Royale East Development, Inc., 861 So.2d 74 (Fla. App. 4 Dist. 2003).

What the proof may eventually show at trial is irrelevant.
Connelly v. Merritt, 273 So.2d 7 (Fla. App. 1 Dist. 1973).

The appellate court must accept as true all well-pled allegations of the complaint.
Gracey v. Eaker, 837 So.2d 348 (Fla. 2002);
Florida Dept. of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002);
Brown v. Miami-Dade County, 837 So.2d 414 (Fla. App. 3 Dist. 2001); review denied, 847 So.2d 977 (Fla. 2003);
Florida Medical Center, Inc. v. New York Post Co, Inc., 568 So.2d 454 (Fla. App. 4 Dist. 1990);
Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So.2d 861 (Fla. App. 3 Dist. 1977).

When reviewing a motion to dismiss for lack of personal jurisdiction, the court will derive the facts from the affidavits in support of the motion to dismiss and the transcripts and records submitted in opposition to the motion to dismiss.
Wendt v. Horowitz, 822 So.2d 1252 (Fla. 2002)
 
s. 294 Presumption of correctness

The trial court’s decisions, orders, and judgments come to the appellate court clothed with a presumption of correctness.
Lafaille v. Lafaille, 837 So.2d 601 (Fla. App. 1 Dist. 2003);
Baker v. Falcon Power, Inc., 788 So.2d 1104 (Fla. App. 5 Dist. 2001);
Klette v. Klette, 785 So.2d 562 (Fla. App. 1 Dist. 2001);
Muina v. Canning, 717 So.2d 550 (Fla. App. 1 Dist. 1998), cause dismissed, 718 So.2d 169 (Fla. 1998);
O’Connor v. Marston, 717 So.2d 82 (Fla. App. 5 Dist. 1998);
Singletary v. Costello, 665 So.2d 1099 (Fla. App. 4 Dist. 1996);
Canto v. J.B. Ivey and Co., 595 so.2d 1025 (Fla. App. 1 Dist. 1992);
Bei v. Harper, 475 So.2d 912 (Fla. App. 2 Dist. 1985).


§ 459 Circuit court sitting in appellate capacity
Certiorari 11(1), 27, 28(1) to (3)

Certiorari jurisdiction is to be sparingly invoked in a situation where a district court of appeal is asked to review a decision of a circuit court sitting in its appellate capacity.
1 Ortega v/ United Auto. Ins. Co., 847 So.2d 994 (Fla. 3rd DCA 2003), review dismissed, 859 So.2d 516 (Fla. 2003).

The review of rulings by the circuit court sitting in its appellate capacity is referred to as “second-tier certiorari.”
2 Harris v. Culbreath, 818 So.2d 563 (Fla. 2nd DCA 2002).

“Second-tier certiorari” or “second appeal certiorari” review includes a district court of appeal’s review of a circuit court order entered in its certiorari review capacity over a final administrative order.
3 §471

The standard that applies when a district court of appeal reviews by certiorari a decision of the circuit court sitting in its appellate capacity is whether the court denied the petitioner due process,
4 Ortega v/ United Auto. Ins. Co., 847 So.2d 994 (Fla. 3rd DCA 2003), review dismissed, 859 So.2d 516 (Fla. 2003).
Tedder v. Florida Parole Com’n, 842 So.2d 1022 (Fla. 1st DCA 2003);
Union American Ins. Co., v. USA Diagnostics, Inc., 765 So.2d 227 (Fla. 4th DCA 2000);
Goodman v. County Court in Broward County, Fla., 711 So.2d 587 (Fla. 4th DCA 1998).

And whether the decision is a departure from the essential requirements of the law, resulting in a miscarriage of justice.
5 Ortega v/ United Auto. Ins. Co., 847 So.2d 994 (Fla. 3rd DCA 2003), review dismissed, 859 So.2d 516 (Fla. 2003).
Tedder v. Florida Parole Com’n, 842 So.2d 1022 (Fla. 1st DCA 2003);
Hord v. Taibi, 801 So.2d 1011 (Fla. 4th DCA 2001);
Union American Ins. Co., v. USA Diagnostics, Inc., 765 So.2d 227 (Fla. 4th DCA 2000);
Goodman v. County Court in Broward County, Fla., 711 So.2d 587 (Fla. 4th DCA 1998).
State Dept. of Highway Safety and Motor Vehicles v. Salter, 710 Do.2d 1039 (Fla. 2nd DCA 1998).

Illustration: A circuit court decision upholding the constitutionality of a statute later declared unconstitutional by the Florida Supreme Court departed from the essential requirements of law and resulted in a miscarriage of justice, thus warranting certiorari review.
6 Progressive Exp. Ins. Co. v. MTM Diagnostics, Inc., 754 So.2d 150 (Fla. 2nd DCA 2000).

The review is limited to the issues of whether the circuit court afforded procedural due process and whether it applied the correct law.
7 Mabrey v. Florida Parole Com’n, 858 So.2d 1176 (Fla. 2nd DCA 2003);
Department of Highway Safety and Motor Vehicles v. Scinta, 828 So.2d 486 (Fla. 2nd DCA 2002);
Harris v. Culbreath, 818 So.2d 563 (Fla. 2nd DCA 2002);
State Dept. of Highway Safety and Motor Vehicles v. Davis, 775 So.2d 989 (Fla. 1st DCA 2000).

Observation: A decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari.
8 Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000).

In determining the appropriate standard to be employed, the Florida Supreme Court analyzed two if its decisions.

In Combs,
9 Combs v. State, 436 So.2d 93 (Fla. 1983)

The Court held that a district court of appeal’s review of an appellate circuit court decision should determine whether there was a departure from the essential requirements of law.

In Education Development Center,
10 Education Development Center, Inc. v. City of West Palm Beach Zoning Bd. Of Appeals, 541 So.2d 106, 53 Ed. Law Rep. 335 (Fla. 1989)

The Court held that a district court’s review of an appellate circuit court’s decision which reviewed an administrative agency decision should consider whether the circuit court afforded procedural due process and applied the correct law.
When the two standards are juxtaposed, the Supreme Court concluded that the applied the correct law is synonymous with observing the essential requirements of law, and when the standards are reduced to their core, they appear to be the same.
11 Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995).

Certiorari review by a district court of appeal is not warranted by an allegedly erroneous legal interpretation by the circuit court sitting in an appellate capacity.
12  Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) (district court merely disagreed with circuit court’s interpretation of applicable law).

A circuit court order that is fact-specific and fact-dependent, or an order that provides a result without a written opinion and therefore cannot act as precedent in future cases, will generally not merit certiorari review in a district court of appeal, even if the court disagrees with the result.
13 Department of Highway Safety and Motor Vehicles v. Alliston, 813 So.2d 141 (Fla. 2nd DCA 2002), review denied, 835 So.2d 269 (Fla. 2002).

B. DISTINCTION BETWEEN “DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW” AND LEGAL ERROR

§ 463 Generally
It is important to distinguish the concept of a “departure from the essential requirements of law” from the concept of legal error.
1

On a petition for the common-law writ of certiorari, the legal correctness of the judgment on which review is sought is immaterial.
2

The required “departure from the essential requirements of law” means something more than simple legal error.
3

It means an inherent illegality or irregularity, an abuse of judicial power, an act of judiciary tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice,
4

Or the failure to apply the correct law which results in a miscarriage of justice.
5

The writ of certiorari properly issues to correct essential illegality but not legal error.
6

Illustration: Medical malpractice petitioners were not entitled to the grant of a writ of certiorari where they sought to reverse the trial court’s order determining that the defendant’s presuit investigation has complied with the applicable statutory provisions; the ruling did not depart from the essential requirements of the law.
7

Observation: The phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations that effectively deny appellate review, or that pertain to the regularity of procedure.
8

Dissatisfaction with the result of a decision by the lower court may not be reviewed under the guise of certiorari jurisdiction.
9

Mere disagreement with the lower court’s interpretation of the applicable law is also an improper basis for common law certiorari.
10

§ 464 Particular legal errors
It is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law: the district courts have the discretion to judge each case individually.
1

A judgment reached in the face of a total lack of evidence constitutes a deviation from the essential requirements of the law and, thus, when such judgment is not otherwise reviewable by appeal it may be reached by a common-law writ of certiorari issued by the appropriate court.
2

The incorrect application of the doctrine of res ipsa loquitur resulting in an illegal judgment presents a proper case for review by certiorari,
3

However, a requirement imposed by the trial court that a petitioner orally respond to questions from a doctor during his or her independent medical examination of the petitioner does not constitute a departure from the essential requirements of law.
4

Certiorari is not available simply to correct an erroneous trial court ruling.
5

Nonfundamental errors of judgment or of procedure cannot become the subject of a certiorari proceeding.
6

The reviewing court thus has no power in certiorari proceedings to inquire into alleged errors in admitting or rejecting evidence, in giving or refusing charges to the jury, in giving weight to testimony, in making rulings on the pleadings or other rulings during the trial.
7

Or in other matters of procedure.
8

This is true even though the error might be reversible on appeal.
9

Especially is it true if the judgment, though irregular, affords substantial justice to the parties.
10

Certiorari review does not extend to substantial errors that are calculated to materially injure the complaining party.
11

Including serious irregularities or material fundamental errors in applying the law.
12

Or an error that it is so flagrant as to constitute a departure from the essential requirements of the law, of that renders the judgment illegal or void, not merely erroneous.
13

§ 465 Violation of clearly established principle of law
A clearly established law, which if violated by an inferior court allows for a district court’s grant of certiorari review, can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law; thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review
1

Or a departure that amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice.
2

Illustration: The exercise of a district court’s certiorari jurisdiction was appropriate to review a circuit court’s appellate decisions holding that the insureds had no standing to bring a breach of contract action against insurance to recover personal injury protection (PIP) and medical payments benefits unless the insureds paid the medical bills or were sued by the medical providers; the circuit court’s decisions were in conflict with the PIP statute and such error was a departure from a clearly established law for purposes of certiorari review.
3

REVIEWABLE ORDERS, DECISIONS AND JUDGMENTS
A. IN GENERAL
§ 466 Generally, Requirement of Finality
Common-law certiorari ordinarily lies to review only a final judgment or order
1

Or one that is final in nature.
2
A  judgment for attorney’s fees and costs is a civil action is reviewable on a timely filed petition for a writ of certiorari as a final order.
3

The error of a circuit court, sitting in its appellate capacity, in affirming a county court’s denial of the prevailing party attorney’s fees, is not the type of error reviewable by a district court of appeal on common-law certiorari where the error would not constitute a departure from the essential requirements of law or a miscarriage of justice that would warrant certiorari review.
4

A petition for writ of common-law certiorari to review the transfer of the case from one circuit judge to another will be denied because the assignment of specific court cases to particular judges of a multijudge court is a matter within the internal government of that court, litigants have no standing to enforce internal court policy and have no right to have particular judge hear their case.
5
 
§ 467 Order granting summary judgment
Certiorari may be granted to require a circuit court to enter an order granting a partial summary judgment.
1

However, an order that grants a motion for summary judgment and includes the traditional words of finality “go hence without day” is a final judgment and is not reviewable on a writ of certiorari where the time for appeal has run.
2 Raymond v. Caldwell Banker Residential Real Estate, Inc., 848 So.2d 1160 (Fla. 4th DCA 2003).

To obtain a writ of certiorari from a nonfinal order denying a summary judgment on an immunity claim a petitioner must establish a departure from essential requirements of law, resulting in a material injury for the remainder of the case that cannot be corrected on a postjudgment appeal.
3

The issuance of a writ of certiorari requiring the trial court to either grant or deny a public official’s motion for a summary judgment on the issue of a qualified immunity is warranted where the official will effectively lost his or her entitlement to the qualified immunity if the case proceeds to trial, and will thus be subjected to irreparable injury.
4

A party is entitled to a writ of certiorari directing a circuit court to dismiss his or her opponent’s untimely appeal of a county court’s order granting a summary judgment to the party seeking the writ where the circuit court lacks jurisdiction to entertain the untimely appeal, and the party seeking the writ of certiorari will not later have an adequate remedy by way of appeal if the circuit court rules in favor of the opponent.
5



C. NONFINAL ORDERS AND DECISIONS

§ 472 Generally

Both the certiorari jurisdiction of district courts of appeal
1 §456

And circuit courts,
2  §457

May be sought to review nonfinal orders of lower tribunals, other than as prescribed by the rule
3 Fla.R.App.P 9.130

Applicable to appellate proceedings to review nonfinal orders.

Observation: Because the common-law writ of certiorari provides a remedy only where the petitioner meets a heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm. It is extremely rare that erroneous interlocutory orders can be corrected by resort to common-law certiorari.
It is anticipated that because the most urgent interlocutory orders are appealable under the appellate rule, there will be very few cases where common-law certiorari will provide relief.
4 Committee notes to Fla.R.App.P 9.130

Certiorari review is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule, which authorizes appeal from only a few types of nonfinal orders.
5

Other than as provided in the appellate rule, a party may seek review of a nonfinal order only when appealing the ensuing final judgment or by petitioning for a writ of certiorari.
6

A nonfinal order is reviewable by certiorari only in limited circumstances.
7

In order to grant a writ of certiorari for a nonfinal order, the order to be reviewed must constitute a departure from the essential requirements of law; the order must cause material injury through subsequent proceedings; and the injury must be irreparable, that is, one for which there will be no adequate remedy after final judgment
8

Or, as otherwise stated, in seeking certiorari review of a pretrial, nonappealable order, the party seeking review must demonstrate no only that the trial judge departed from the essential requirements of law but also that the harm resulting from the erroneous order is material and cannot be remedied on appeal from the final judgment or order.
9

Illustration: Certiorari was not available to review an interlocutory order denying a motion to file an amended answer to include a compulsory counterclaim because the interlocutory order was reviewable on plenary appeal, and if the error were established, the defendants would be entitled to litigate their proposed counterclaim.
10

A district court of appeal has jurisdiction to consider the appropriate remedy in a case even when a petition for certiorari is filed in such court to review a nonfinal order for which no notice of appeal was filed in the trial court.
11

An appellate court may decline to exercise its jurisdiction to review by certiorari a nonfinal order in the absence of a showing of irreparable injury to the petitioner.
12

Where a circuit court judge’s order allowing the automatic disqualification of a judge upon the filing of any affidavit alleging judicial bias or prejudice resulted in a violation of clearly established law and a miscarriage of justice because it offended procedures integral to the fair administration of justice, a petition for writ of certiorari was granted.
13


§ 474 Motion to set aside clerk’s default
Absent extraordinary circumstances, an order on a motion to set aside a clerk’s default is not reviewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits the interlocutory review of nonfinal orders.
1 Dawkins v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003);
BMW Financial Services NA, LLC v. Alger, 834 So.2d 408 (Fla. 5th DCA 2003).

Although the party against which a default judgment is entered would have to proceed to trial on the issue of damages, this expense does not qualify as an irreparable injury, such as would justify a certiorari review of a trial court’s nonfinal order denying a party’s motion to set aside a clerk’s default.
2 BMW Financial Services NA, LLC v. Alger, 834 So.2d 408 (Fla. 5th DCA 2003).

V. SCOPE AND EXTENT OF REVIEW

§ 483 Generally
Review by certiorari is limited as compared with review on appeal.
1 Nation v. State, 155 Fla. 858, 22 So.2d 219 (1945).

Common-law certiorari is traditionally limited in the scope of review to determining whether the lower court or agency exceeded its jurisdiction and will lie only to review judicial or quasijudicial actions.
2 G-W Development Corp. v. Village of North Palm Beach Zoning Bd. of Adjustment, 317 So.2d 828 (Fla. 4th DCA 1975).

Illustration: Only those decisions that have a judicial or quasijudicial character are subject to review in certiorari proceedings. In this regard, the action of a zoning commission in rescinding, by a second resolution, a first resolution that rezoned property was an action legislative in character so that certiorari will not lie.
3 Dade County v. MArkoe, 164 So.2d 881 (Fla. 3rd DCA 1964).

The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration
4 Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838 (Fla. 2001).

nor to direct the respondent to enter any particular order or judgment.
5 Broward County v. G.B.V. Intern., Ltd., 787
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rubyruby27
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« Reply #12 on: September 11, 2006, 03:19:44 PM »

“An assignee has no greater right than his assignor; consequently, it cannot be argued that a valid assignment may breathe life into the assigned instrument otherwise invalid.”
Crossman v. Fontainebleau Hotel Corp., 273 F.2d 720 (5th Cir. 1959)

“An assignee of an account takes the account subject to all outstanding equities, and cannot occupy a better position than the assignor”
Prestress Erectors, Inc. v. James Talcott, Inc., 213 So.2d 296 (Fla. App. 3 Dist. 1968)
---------------------------------
“The rule that an assignee occupies the same position as his assignor is subject to the qualification that equitable principles, such as estoppel, may be applied to alleviate harsh operation.”
Finesmith v. Singer, 216 So.2d 39 (Fla. App. 3 Dist. 1968)
 
 
 
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Breach of Contract –
 

[1] Elements and Case Citations
(1) Plaintiff and defendant entered a valid contract;
(2) Defendant breached the contract; and
(3) Plaintiff suffered damages caused by defendant’s breach.
____________________________________
Florida State Courts
First District: Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043 (Fla. 1st DCA 1977)
Third District: Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227, n.2 (Fla. 3d DCA 2002)
Fourth District: J.J. Gumberg Co. v. Janis Services, Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003)
Fifth District: Abbot Laboratories, Inc. v. General Elec. Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000)
Florida Federal Courts
Eleventh Circuit: Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999)
Southern District: Air Caledonie International v. AAR Parts Trading, 2004 WL 943209 (S.D. Fla. 2004)
Middle District: Bland v. Freightliner, LLC, 206 F.Supp.2d 1202, 1210 (M.D. Fla. 2002)
Florida Statutes
§ 86.031, Fla. Stat. (declaratory judgments; construction of contract before or after breach)
References
RESTATEMENT (FIRST) OF CONTRACTS § 312 (1982)
 
[2] Defenses to Claim for Breach of Contract
(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses See § 60.
(2) Statute of Limitations: § 95.11(2)(b), Fla. Stat. (five years).
(3) Defendant’s obligation to perform under the contract may be excused under the doctrine of commercial frustration when the purposes of the contract, or those which defendant bargained for, have become ``frustrated because of the failure of consideration, or impossibility of performance by the other party’’. See Home Design Center Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767, 770 (Fla. 2d DCA 1990).
(4) Duress requires severe pressure or other influence that destroys the defendant’s free will, and forces the defendant to do an act or enter into a contract. See Franklin v. Wallack, 576 So. 2d 1371, 1373 (Fla. 5th DCA 1991) (J. Sharp, dissenting); see also RESTATEMENT (SECOND) OF CONTRACTS §§ 174-177 (1981).
(5) Statute of Frauds: Fla. R. Civ. P. 1.110(d); see also §§ 672.201, 672.206 (Florida U.C.C.), 678.319 (sale of securities), 680.201 (leasing), 725.201 (payment of another’s debt), Fla. Stat; RESTATEMENT (SECOND) OF CONTRACTS §§ 110, 130 (1981).
(6) The implied covenant of good faith and fair dealing requires that each party act consistently with, and take no actions to frustrate, the contract’s purpose, with the exception that Florida courts will not employ the covenant to negate a contract’s express terms. RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981).
(7) Impossibility of performance is a defense to breach of contract when the factual situation renders one party’s performance under the contract impossible. See Home Design Center Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767, 770 (Fla. 2d DCA 1990).
( Contract enforcement is unconscionable when the contractual term was unreasonable and unfair (substantive unconscionability) at the time the parties entered the contract (procedural unconscionability). See Kohl v. Bay Colony Club Condominium, Inc., 398 So. 2d 865, 868 (Fla. 4th DCA 1981), rev. denied, 408 So. 2d 1094 (Fla. 1981); see also § 672.302, Fla. Stat.; RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981).
(9) Mistake:
(a) Mutual mistake, which renders a contract voidable when both parties, at the time of making a contract, were mistaken as to a basic assumption of the contract that has a material effect on the parties’ performances under the contract. Continental Assur. Co. v. Carroll, 485 So. 2d 406, 409 n.2 (Fla. 1986); see also RESTATEMENT (SECOND) OF CONTRACTS § 152 (1981); and
(b) Unilateral mistake, which allows a party to void a contract when the party, at the time of making a contract, was mistaken as to a basic assumption of the contract that has a material effect of the parties’ performances which is adverse to the mistaken party. Orkin Exterminating Co., Inc. v. Palm Beach Hotel Condominium Assoc., Inc., 454 So. 2d 697, 699 (Fla. 4th DCA 1984); see also RESTATEMENT (SECOND) OF CONTRACTS § 153 (1981).
(10) Repudiation: An obligee sued for breach of contract may assert the defense of repudiation when the obligor first repudiated his or her duty of performance. See Southern Crane Rentals, Inc. v. City of Gainesville, 429 So. 2d 771, 773 (Fla. 1st DCA 1983); see also RESTATEMENT (SECOND) OF CONTRACTS §§ 250-257 (1981).



 
 
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Unjust Enrichment -
 

[1] Elements and Case Citations
(1) Plaintiff has conferred benefit on the defendant, who has knowledge thereof;
(2) Defendant voluntarily accepts and retains the benefit conferred; and
(3) The circumstances render the defendant’s retention of the benefit inequitable unless the defendant pays to the plaintiff the value of the benefit.
____________________________________
Florida State Courts
First District: Cole Taylor Bank v. Shannon, 772 So.2d 546, 551 (Fla. 1st DCA 2000)
Second District: Swindell v. Crowson, 712 So. 2d 1162, 1163 (Fla. 2d DCA 1998)
Third District: N.G.L. Travel Assoc. v. Celebrity Cruises, Inc., 764 So.2d 672, 675 n. 5 (Fla. 3rd DCA 2000)
Fourth District: Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 992 (Fla. 4th DCA 2003)
Fifth District: Duncan v. Kasim, Inc., 2002 WL 125686, *3 (Fla. 5th DCA 2002)
Florida Federal Courts
Eleventh Circuit: Nova Information Systems, Inc. v. Greenwich Insurance Co., 365 F.3d 996, 1006-07 (11th Cir. 2004)
Southern District: Greenberg v. Miami Children's Hospital Reseach Institute, Inc., 264 F.Supp.2d 1064, 1072 (S.D.Fla. 2003)
Middle District: Shibata v. Lim, 133 F. Supp. 2d 1311, 1316 (M.D. Fla. 2000)
 
[2] Defenses to Claim for Unjust Enrichment
(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60.
(2) Statute of Limitations: § 95.11(3)(j), Fla. Stat. (four years); Calder v. Uwanawich, 449 So. 2d 911, 912 (Fla. 3d DCA 1984).
(3) Plaintiff cannot recover money paid under a mistake of fact when the payee ``received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience’’. Pensacola and A. R. Co. v. Braxton, 34 Fla. 471, 16 So. 317, 317 (1894).
(4) Plaintiff cannot obtain restitution through unjust enrichment when criminal or other wrongful conduct was utilized to confer the benefit. RESTATEMENT OF RESTITUTION § 140 (1937).
(5) Unjust enrichment is unavailable when a change in circumstances renders payment to plaintiff for the benefit conferred inequitable. RESTATEMENT OF RESTITUTION §§ 142, 143 (1937).
(6) Unjust enrichment is unavailable when it is proven that an express contract exists. See, e.g., Williams v. Bear Stearns & Co., 725 So. 2d 397, 399 (Fla. 5th DCA 1998).


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The Fernandes case:


PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES, Appellee_ Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County


13 Fla. L. Weekly Supp. 560a
Contracts -- Credit agreement -- Limitation of actions -- No error in dismissal of statement of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit card based on expiration of four-year statute of limitations -- Construction of conflicting statutory provisions establishing five-year limitations period to recover on contract founded on written instrument and four-year limitations period to recover on liability not founded on written instrument and on store accounts requires that store accounts be subject to four-year statute of limitations whether or not founded on written instrument -- Further, action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County. Case No. 502005AP000032XXXXMB, Division ‘AY'. March 6, 2006. Appeal from County Court, in and for Palm Beach County, Judge Nancy Perez. Counsel: Leslie Mark Schneider, Hayt, Hayt & Landau, Miami, for Appellant. Paul Fernandes, Boca Raton, pro se.

(PER CURIAM.) Appellant, Portfolio Recovery Associates, LLC (“Portfolio”), sued Appellee, Paul Fernandes, as the alleged assignee of a debt incurred by Fernandes to Sears National Bank on a Sears credit card. Portfolio filed a statement of claim under the Small Claims Rules for breach of contract (Count 1), account stated (Count 2), and unjust enrichment (Count 3), claiming $3,201.06 in damages.

Fernandes orally moved to dismiss the claims as outside the statute of limitations at the pretrial conference. See Rule 7.090(c), Fla. Sm. Cl. R. Portfolio argued that Florida Statute §95.11(2)(b), which provides for a five year statute of limitations, governed because the statement of claim alleged a cause of action to recover on a contract founded on a written instrument. Fernandes argued that Florida Statute §95.11(3)(k), which provides for a four year statute of limitations, governed because the action was not founded on a written instrument or was on a store account. The trial court dismissed the case based on its finding that the credit card account was an open account subject to the four year statute of limitations.1


Portfolio argues that the trial court erred when it dismissed the statement of claim based on a finding that the claim was barred by the four year statute of limitations. We disagree.2

An order dismissing a complaint is reviewed de novo. See City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004). The claim must be taken as true and considered in the light most favorable to the plaintiff, subject to the trial court's ability to summarily dispose of small claims actions if no triable issue exists. See Bryant v. Adventist Health Systems Sunbelt, Inc., 869 So.2d 681 (Fla. 5th DCA 2004); Rule 7.135, Fla. Sm. Cl. R.

The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations. See 20 Am. Jur. 2d, Credit Cards, §46 (2005). In Count 1, Portfolio alleged that Fernandes “by execution of the application and/or by use of the credit card, accepted the terms and conditions of the credit card holder agreement” attached as Exhibit A. Attached as Exhibit A was a copy of a document entitled “Sears Credit Card Account Sears Premium Card Account Cardholder Account and Security Agreement.”

Section 95.11(2)(b), Fla. Stat., provides that the statute of limitations on actions to recover on a contract founded on a written instrument is five years. Conversely, section 95.11(3)(k), Fla. Stat., provides that the statute of limitations to recover on a contract, obligation or liability not founded on a written instrument and on store accounts is four years.
When construing statutes, the specific controls over the general. See Northwest v. Balkany, 727 So. 2d 382 (Fla. 5th DCA 1999). Thus, if a claim arguably falls within two contradictory subsections of the statute, the more specific controls. Even if Count 1 could be deemed an action founded on a written instrument, it can also be deemed an action on a store account. See 20 Am. Jur. 2d, Credit Cards, §46 (2005); Carte Blanche Corporation v. Pappas, 216 So. 2d 917 (La. 2d Cir. 1968).3 Store accounts have been subject to a separate statute of limitations since 1872. Laws of Florida 1872, c. 1869, §10; McClellan's Digest, §10, p. 733. “The provision is for the benefit of those who have stores, and keep goods therein for sale, and sell them, keeping accounts against the purchasers and relying upon their books of accounts in which the articles are charged as evidence in case of controversy,” and applies whether there is an express or implied agreement covering the charges. Saloman v. The Pioneer Co-operative Company, 21 Fla. 374, 385, 1885 WL 1777 (Fla. 1885). The current grammatical structure, which provides for the limitations period on actions “upon a contract . . . not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts,” has been used since 1919. (emphasis supplied). Laws of Florida 1919, c. 7838, §10, subd.9. “. . . (C)lauses separated by commas are nonrestrictive clauses intended to introduce independent concepts.” Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1108, footnote 6 (Fla. 1996) (Anstead concurring) (quoting brief); see, also, The Elements of Style, Struck and White, 3rd Ed., p. 5 (“(p)lace a comma before a conjunction introducing an independent clause”). Thus store accounts are subject to a four year statute of limitations whether or not founded on a written instrument. See Saloman, supra; Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) (“(h)istorically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by grammar books with the result that statutes are now punctuated prior to enactment. The better rule now seems to be that punctuation is a part of the Act and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or defeat the intention of the Legislature . . . We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”); Broward Builders Exchange, Inc. v. Goehring, 231 So. 3d 513, 515 (Fla. 1970) (“(i)t cannot now be assumed that the Legislature was unfamiliar with this simple rule of punctuation . . .”). Store accounts, of course, as a species of open accounts, may be based on either a written or oral agreement. See Robert W. Gottfried v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); Hawkins v. Barnes, 661 So. 2d 1271 (Fla. 5th DCA 1995).
Count 1 alleges that Fernandes bound himself to the terms of the Cardholder Account and Security Agreement either when he executed an application for a Sears card or when he used a Sears card. If the Cardholder Account and Security Agreement alone were introduced into evidence at trial, though, it would not be sufficient to establish Fernandes' liability. See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P. 2d 1120 (Mont. 1993). By itself, it created no liability for Fernandes.4 Instead, it addressed the manner in which a liability which might be later created should be discharged.5 If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995), rev. den. 666 So. 2d 143 (Fla. 1995); Multi-Line Claims Service, Inc. v. Cumis Insurance Society, Inc., 739 So. 2d 144 (Fla. 3d DCA 1999) (four years statute of limitations for breach of oral contract applied to action on oral contract for adjusting services, though parties agreed to compensation based on a written fee schedule); Johnson v. Harrison Hardware Furniture Co., 119 Fla. 479, 472, 160 So. 878 (1935) (“(t)he writings attached to, relied on, and made a part of, the second amendment to plaintiff's replication do not on their face constitute a contractual acknowledgment of the loan of any money by plaintiff to defendant, which is the thing sued for, therefore such writings per se can avail nothing to plaintiff as a sufficient preclusion of the bar of the three-year statute of limitations [applicable to actions not founded upon an instrument in writing.] . . .”); Gulf Life Inc. Co. v. Hillsborough County, 129 Fla. 98, 104, 176 So. 72 (1937) (“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).6 The action is not founded on a written instrument for statute of limitations purposes.7

The legislative scheme makes sense. See Bush v. International Fidelity Ins. Co., 834 So. 2d 212 (Fla. 4th DCA 2002), rev. den. 847 So. 2d 976 (Fla. 2003) (statutory provisions to be given reasonable and logical construction). “. . . (S)tatutes of limitations are designed to prevent undue delay in bringing suit on claims and to suppress fraudulent and stale claims from being asserted, to the surprise of parties or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time or the defective memory or death or removal of [a] witness.” Foremost Properties, Inc. v. Gladman, 100 So. 2d 669, 672 (Fla. 1st DCA 1958), cert. den. 102 So. 2d 728 (Fla. 1958) (citation omitted). A review of the statute shows, consistent with common sense, that those actions on which proof is less likely to deteriorate over time are subject to longer limitations periods; those actions on which proof is more likely to deteriorate because of faulty memory or otherwise are subject to shorter limitations periods. Unlike a written contract containing all the terms sued on, proof of the balance due under a store credit card depends on the correctness of the store's books. We know, though, that record keepers come and go; purchased items are returned or exchanged; and partial payments are made. Proof of the amount due under a store credit card is simply not as secure as proof of the amount due on, for example, a promissory note that contains in writing all the terms of the parties' undertakings. See Nardone v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976), mod. on other grds., Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (unfair to allow one who has slept on his rights to sue a party “ ‘. . .who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses' ”); Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987).
Because Count 1 alleges a claim on a store account; because it does not allege a claim to recover on a contract founded on a written instrument; because under the Small Claims Rules the trial court properly inquired into undisputed facts at the pre-trial conference that would be dispositive of the claims; and because the trial court properly found that the claims raised in Counts 2 and 3 of the statement of claim were likewise subject to a four year limitations period, which Portfolio does not dispute, it is
ORDERED AND ADJUDGED that the trial court's judgment is AFFIRMED. (SMITH, MAASS and STERN, JJ., concur.)
__________________
1Apparently the trial court summarily disposed of the statement of claim on being apprised of the last payment date. See Rule 7.135, Fla. Sm. Cl. R.
2On appeal from an order of dismissal an appellate court may consider only issues presented to the trial judge. See Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). This Court agrees with the trial court's decision to dismiss Counts 2 and 3 of the statement of claim. Neither party has taken issue with the trial court's decision to dismiss those counts. Portfolio concedes its claims are precluded if subject to the four year limitations period.
3Portfolio alleges it is the assignee of Sears National Bank, an affiliate of Sears, Roebuck and Co. See preamble to Cardholder Account and Security Agreement; 12 U.S.C. § 1841(k) (“. . .the term ‘affiliate' means any company that controls, is controlled by, or is under common control with another company.”) Under the Competitive Equality Banking Act of 1987, Sears could own a credit card bank without violating the Bank Holding Company Act of 1956 and thus charge a nationwide uniform rate of interest on credit card sales. See, also, Marquette Nat'l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct. 540 (1978).
4Portfolio implicitly recognized this when it incorporated elements of a claim for account stated in Count 1. See Paragraphs 8, 9, statement of claim; Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981).
5No statement of account was attached to the statement of claim.
6The cited cases are distinguishable from those where the written instrument obligated the debtor to purchase defined goods or services and pay for them at a contemporaneously determined or determinable rate. Compare, e.g., McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924); Mercy Hospital, Inc. v. Carr, 297 So. 2d 598 (Fla. 3d DCA 1974), cert. den. 307 So. 2d 448 (Fla. 1974).
7For example, assume Smith agrees in writing with Jones that if Jones loans him money Smith will repay it with 10% interest. If Jones later sues Smith claiming Smith borrowed money and did not repay it, whether Smith is liable to Jones is dependent on whether and how much he borrowed. Suit to recover the money loaned is not founded on a written instrument. See Johnson v. Harrison Hardware & Furniture Co., supra.
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