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« on: August 14, 2006, 01:02:48 PM »

“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 #1 on: August 14, 2006, 01:03:44 PM »

“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)


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 #2 on: December 08, 2006, 12:51:20 PM »

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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VexatiousLitigant
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« Reply #3 on: December 08, 2006, 07:36:58 PM »

Anything on account stated for assignees?
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fraudfighter
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« Reply #4 on: December 09, 2006, 07:10:39 PM »

Quote from: "VexatiousLitigant"
Anything on account stated for assignees?



I don't think there is a specific account stated assignee case.

I did read the Ready v. McDonald case which is the successive point of departure case. The key phrase is "new account". A JDB assignee cannot create a new debtor-creditor account where transactions can occur such that an account stated could result from those new transactions. Thus there are no successive points of account stated SOL departure for a JDB.

The Toth v. Mansell case makes it clear that if only interest is being added, then the SoL of an account stated is not affected.

The Citibank v. Martin NY state case on credit card case summary judgment makes it clear that "contractual" interest from a prevision in the agreement on the account cannot be charged on an account stated claim since it is a secondary agreement.

So the JDB can't add "contractual" interest on an account stated claim.

So, if the JDB is seeking an account stated claim, the SoL runs from whatever OC account statement they can produce competently into evidence, not from any JDB account statement.

Also, if the JDB claims damages in excess of the amount on the OC account statement, the JDB has failed to state an account stated claim.

Any prejudgment interest would be ministerial statutory interest from the date of the account statement to the date of the judgment.  

That's the case one must argue against any JDB account stated claim.

So for account stated SoL, it counts from whatever OC account statement they have. No OC account statement, then you use that no account stated can result from parties with no prior transactions, aka, failure of consideration.
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petebull
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« Reply #5 on: June 21, 2010, 07:48:33 PM »


does this give us an affirmative defense or any other legal tool to fight off the Account Stated claims?

The 2009 Florida Statutes

Title XXXIX
COMMERCIAL RELATIONS

Chapter 687
INTEREST AND USURY; LENDING PRACTICES

View Entire Chapter

687.0304 Credit agreements.--

(1) DEFINITIONS.--For the purposes of this section:

(a) "Credit agreement" means an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation.

(b) "Creditor" means a person who extends credit under a credit agreement with a debtor.

(c) "Debtor" means a person who obtains credit or seeks a credit agreement with a creditor or who owes money to a creditor.

(2) CREDIT AGREEMENTS TO BE IN WRITING.--A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.

(3) ACTIONS NOT CONSIDERED AGREEMENTS.--

(a) The following actions do not give rise to a claim that a new credit agreement is created, unless the agreement satisfies the requirements of subsection (2):

1. The rendering of financial advice by a creditor to a debtor;

2. The consultation by a creditor with a debtor; or

3. The agreement by a creditor to take certain actions, such as entering into a new credit agreement, forbearing from exercising remedies under prior credit agreements, or extending installments due under prior credit agreements.

(b) A credit agreement may not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor.
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« Reply #6 on: June 21, 2010, 11:06:23 PM »

re-reading my above post, it looks awfully one sided... it says DEBTORS can't maintain an action... no mention of creditors...

stupid laws designed by the rich and powerful to protect the rich and powerful.
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