CONTRACTORS UNLIMITED, INC., AND GLENNON WADE, APPELLANTS,
v.
NORTRAX EQUIPMENT COMPANY SOUTHEAST, ETC., APPELLEES
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Contractors Unlimited and Glennon Wade appealed from orders denying their motions to set aside clerk defaults and default final judgment. The court affirmed the default judgment against the corporation but reversed and remanded as to Wade because the complaint failed to attach an adequate copy of the written instrument (personal guaranty) upon which the suit against him was based.
The default and final judgment against Contractors Unlimited, Inc. are affirmed because the complaint adequately alleged an open account cause of action with sufficient supporting documents. The default and final judgment against Glennon Wade are reversed and the case is remanded because the complaint failed to attach an adequate copy of the written instrument (personal guaranty) upon which the suit against him was based.
[1] A complaint based on a written instrument fails to state a cause of action if the instrument is not attached to or incorporated into the complaint.
[2] A default judgment entered on a complaint that fails to state a cause of action may be set aside.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the fundamental requirement for pleading causes of action based on written instruments under Florida law.
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Join FLexlaw to unlock all legal intelligenceNortrax Equipment Company sued Contractors Unlimited, Inc. for unpaid invoices on open account (Count I) and sued Glennon Wade based on his alleged pe…
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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 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 P. Trawick, Florida Practice and Procedure, § 25-4, at 412 (2001 ed.). A party seeking affirmative relief may not be granted relief that is not supported by the pleadings. Id.
A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint. Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001). See Fla. R. Civ. P. 1.130(a) (all contracts or documents “upon which action may be brought ... shall be incorporated in or attached to the pleadings”). Accordingly, we affirm the default and final judgment entered pursuant thereto against Contractors Unlimited, Inc., but set aside the default and final judgment entered against Glennon Wade and remand to permit Nortrax to file a second amended complaint against Wade.
AFFIRMED in part; REVERSED in part and REMANDED.
SHARP, W. and ORFINGER, JJ., concur.
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Gafoor Jaffer and Nina Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199 (Fla. 4th DCA 2015)…liability, the [plaintiffs below] did not allege any grounds entitling them to relief.”). “A party seeking affirmative relief may not be granted relief that is not supported by the pleadings.” Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So. 2d 286, 288 (Fla. 5th DCA 2002) (citation omitted).3 The only exception to that principle occurs by rule “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had…
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S. Fla. Coastal Elec., Inc. v. Treasures ON the BAY II Condo Ass'n, Inc., 89 So. 3d 264 (Fla. 3d DCA 2012)…to state a cause of action against the defendant. Id. at 140 (reversing final summary judgment in favor of plaintiff as plaintiff failed to attach English translation of guaranty to complaint); Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So. 2d 286 (Fla. 5th DCA 2002) (reversing default and final judgment on the basis that plaintiff failed to attach a copy of the written guaranty upon which plaintiff was suing defendant). Here, the majority creates a disputed issue of fact out of whole cloth.…
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Glen Garron, LLC v. Marla Buchwald, 210 So. 3d 229 (Fla. 5th DCA 2017)…v. P. 1.130(b). “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.” Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So. 2d 286, 288 (Fla. 5th DCA 2006) (citing Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 500 (Fla. 4th DCA 2001)). The purpose of this rule “is to apprise the defendant of the nature and extent of the cause of action so that the defendant may…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001)
- Worlen Guy Knighten v. State, 782 So. 2d 489 (Fla. 2d DCA 2001)
- Myers v. Cardy Mae Myers, 652 So. 2d 1214 (Fla. 5th DCA 1995)
- H & H Design Builders, Inc. v. Travelers' Indem. Co., 639 So. 2d 697 (Fla. 5th DCA 1994)
- Roberts v. Shaw, 639 So. 2d 697 (Fla. 4th DCA 1994)