SAFECO INSURANCE COMPANY OF AMERICA, A CORPORATION, APPELLANT,
v.
LAWRENCE AARON WARE, APPELLEE
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Safeco Insurance appealed a default judgment entered after the trial court struck its motion to dismiss as frivolous. The court held that Safeco's motion to dismiss was proper under Florida Rule of Civil Procedure 1.130 because the complaint failed to attach the insurance policy upon which the action was based, making the court's entry of default judgment erroneous.
The court held that Safeco's motion to dismiss was not frivolous but was perfectly appropriate under Florida Rule of Civil Procedure 1.130. Therefore, the trial court's order striking the motion and entering default judgment was erroneous.
[1] A motion to dismiss is an appropriate method to challenge a complaint that fails to attach a required written instrument upon which the action is based.
[2] 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 plead…
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Join FLexlaw to unlock all legal intelligence“In the case of a complaint based on a written instrument it does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question.”
Establishes the legal principle that a complaint relying on a contract must include or attach the contract to state a valid cause of action.
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Join FLexlaw to unlock all legal intelligenceWare sued Safeco and others for damages arising from an automobile accident. Safeco moved to dismiss or abate, contending that since the cause of acti…
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DOWNEY, Judge.
The trial court struck as frivolous appellant’s motion to dismiss, which was directed to appellee’s complaint, and entered a default judgment against appellant. This appeal involves the propriety of that judgment.
Appellee sued appellant and others for damages arising out of an automobile accident. Appellant initially moved for an enlargement of time within which to plead. While that motion was pending, but as yet unheard because of calendar problems, appellant filed a motion to dismiss or abate the action, essentially contending that the cause of action against appellant was based upon an insurance contract which, according to the allegations of the complaint, was not attached to the complaint because the policy was in the exclusive possession of the appellant. The motion states that appellant has furnished appellee a certified copy of the policy and suggests appellee should be required to attach to the complaint the policy he relies upon. Thereafter appellee filed a motion for final default judgment against appellant, contending that the motion to dismiss was a sham and frivolous and should be stricken and final default judgment entered. Appellant subsequently filed a motion attacking appellee’s complaint on various grounds.
In due course, a hearing was had on all of the pending motions; after the hearing the trial court struck appellant’s motion to dismiss as frivolous and entered a final default judgment against appellant.
Florida Rule of Civil Procedure 1.130 provides that contracts “upon which action may be brought or defense made” or copies thereof “shall be incorporated in or attached to the pleading.” One of the ways to reach a failure to attach a necessary exhibit is by motion to dismiss. Trawick, Florida Practice & Procedure § 6-15 (1980). Of course, if a pleader states that he does not have a copy of the writing involved, then he should obtain a copy thereof through discovery or otherwise and attach it to the appropriate pleading by amendment. See Meadows v. Edwards, 82 So. 2d 733 (Fla.1955). In the case of a complaint based on a written instrument it does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question. Trawick, supra. In the present case the appellant furnished appellee with a cer tified copy of the policy and then moved to have the court require appellee to attach the policy or suffer dismissal of the complaint.
In view of the foregoing the appellant’s motion to dismiss was not frivolous; it was perfectly áppropriate. Therefore, the order striking the motion and entering default judgment was erroneous. For this reason the judgment appealed from is reversed and the cause is remanded for further proceedings.
REVERSED AND REMANDED.
BERANEK and GLICKSTEIN, JJ., concur.
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Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001)…ding.” 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. The bailment ag…
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Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990)…bject mortgage to them in 1986. However, it was not attached to the complaint. When the alleged assignment was finally produced, it was dated April 18, 1988, some four months after the lawsuit was filed. Our opinion in Safeco Insurance Co. v. Ware, 401 So. 2d 1129 (Fla. 4th DCA 1981), would support dismissal of the action based on failure to comply with Florida Rule of Civil Procedure 1.130. Given the scenario before us, appellees’ complaint could not have stated a cause of action at the time it was filed, ba…
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Diaz v. Bell Microproducts-Future Tech, Inc., 43 So. 3d 138 (Fla. 3d DCA 2010)…if the plaintiff failed to attach to the complaint the written contract that formed the basis of its claim for relief against Diaz. As such, the plaintiffs complaint failed to state a cause of action against Diaz, see Safeco Ins. Co. of Am. v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th DCA 1981) (“In the case of a complaint based on a written instrument it does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question.”), and therefore…
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- Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955)