U.S.C. SALES CORPORATION, INC., APPELLANT,
v.
JAMES GALL; AUCTION COMPANY OF AMERICA, ET AL., APPELLEES

Fla. 3d DCA | 1998-03-18
No. 97-2331
Before COPE, LEVY and GREEN, JJ.
706 So. 2d 957 Florida District Court of Appeal, Third District (1998) Positive Treatment
Cited by 1 case
Topics
Appealable Order Fraudulent Inducement Breach Of Contract

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Affirmed.

LEVY and GREEN, JJ., concur.

Dissent
COPE, Judge

COPE, Judge

(dissenting).

(1) Although not raised by the parties, the appeal should be dismissed for want of an appealable order. Plaintiff-appellant is appealing an order dismissing its breach of contract claim, but there remain pending two counts of fraudulent inducement of the same contract. As pled, the fraudulent inducement counts require proof of misrepresentations made before the contract was entered into, as well as subsequent acts furthering the claimed fraud. Since the factual basis of the fraudulent inducement claims is interwoven with the facts constituting the breach of contract claim, the contract claim is not truly a distinct and severable cause of action. We should dismiss the appeal on authority of Northcutt v. Pathway Financial, 555 So. 2d 868 (Fla. 3d DCA 1989).

(2) If we are to reach the merits, I would reverse the order dismissing the contract claim. Plaintiff entered into a short standard form Personal Property Auction Contract with defendants-appellees. Defendants were to auction certain property of plaintiff, and were to pay the net proceeds to plaintiff after deducting allowable expenses and the auctioneer’s fee. The breach of contract claim alleges in substance that the defendants withheld more money than they were entitled to, resulting in the plaintiff receiving less money than it should have. Fifth amended complaint paragraph 59(i). Plaintiff also alleges that defendants have failed to provide proper documentation of the auction income, expenses, and fees.

These allegations state a perfectly good claim for breach of contract. The trial court erred by dismissing it.

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