CHARLES FREDERIC MATHER-SMITH, II, APPELLANT,
v.
J. S. FAIRCHILD, AS GUARDIAN, ETC., APPELLEE
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A guardian appealed the denial of a motion to dismiss an amended complaint challenging a deed given by his ward before her incompetency adjudication. The court held that alternative pleading alleging both incompetency at execution and undue influence is permissible under Florida's pleading rules, even though these theories are legally inconsistent.
Alternative or hypothetical pleading is permissible under Florida Rule 1.8(g) (modeled on Federal Rule 8(e)(2)) even when the legal theories are inconsistent. A party may state multiple claims or defenses in the alternative or as separate counts regardless of consistency, and such pleading does not render the complaint insufficient.
“A party may also state as many separate claims or defenses as he has, regardless of consistency, and whether a defense be based on legal or on equitable grounds, or on both.”
Core language from Florida Rule 1.8(g) establishing that inconsistent claims may be pleaded together
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Join FLexlaw to unlock all legal intelligenceThe plaintiff-appellee, acting as guardian, filed an amended complaint to set aside a deed executed by his ward in favor of the defendant-appellant (t…
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The plaintiff-appellee filed an amended complaint to set aside a deed given by his ward, prior to her adjudication of incompetency to the defendant-appellant, her grandson. The first count of the complaint alleges that the grantor in the deed was incompetent at the time of the execution of the deed. The second count alleges that the execution of the deed was obtained by the defendant by his exercise of undue influence on the grantor. The defendant moved to dismiss, and as an alternative to strike, upon the theory that the complaint alleges two utterly irreconcilable and mutually exclusive causes of action in the same complaint. The court denied both motions.
Rule 1.8(g), Florida Rules of Civil Procedure, 30 F.S.A. is as follows:
“(g) Joinder of Causes of Action; Consistency. A pleader may set up in the same action as many claims or *234causes of action or defenses in the same right as he has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if two or more causes of action are joined. A party may also set forth two or more statements of a claim or defense alternatively, either in one count or defense, or in separate counts or defenses. When two or more statements are made in the alternative and one of them, if made independently, would he sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency, and whether a defense be based on legal or on equitable grounds, or on both. All pleadings shall be construed so as to do substantial justice.”
The above rule is modeled from and to the same effect as Rule 8(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. The appellant contends that the decisions of our courts holding, in effect, that a contention in a will contest of undue influence concedes the existence of testamentary capacity as in Gardiner v. Goertner, 1932, 110 Fla. 377, 149 So. 186, necessarily limits the language of the rule. In support, appellant cites authority dealing with the question of election of remedies in the course of a trial. Holden v. American News Company, D.C., 52 F.Supp. 24. We find these contentions are not controlling here.
Alternative or hypothetical pleading by its very nature is inconsistent. This however, is not a valid objection. Whether or not a party pleads one claim alternatively or hypothetically in a single count or pleads the claim formally as separate claims in two or more counts is largely one of choice. The inconsistency may lie either in the statement of the facts or in the legal theories adopted. 2 Moore’s Federal Practice, 1707. A complaint alleging actual authority and apparent authority, Carroll v. Morrison Hotel Corporation et al., 7 Cir., 149 F.2d 404, and a complaint based upon a written contract and a claim abandoning the contract, Neumann v. Bastian-Blessing Company, D.C., 71 F.Supp. 803, were upheld under the Federal Rule. In a suit on a note a defense of joint venture and usury, Griffin v. Kelly, Fla.1957, 92 So.2d 515, was sustained.
The two legal theories forming the basis of this complaint are permitted under our rules. Finding no error, the order is affirmed.
Affirmed.
ICANNER, Acting C. J., and WHITE, J., concur.
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Ogden v. Chuck Groves, 241 So. 2d 756 (Fla. 1st DCA 1970)…on legal or equitable grounds or both. Florida Rules of Civil Procedure, Rule 1.110(g), 30 F.S.A. The inconsistency permitted in pleadings may be either in the statements of the facts or in the legal theories adopted. Mather-Smith, II v. Fairchild, 135 So. 2d 233 (Fla.App.2d, 1961). A defendant may both deny the plaintiff’s action and seek relief by counterclaim, and the assertion of a counterclaim does not operate as an admission of the plaintiff’s claim. 8 Fla.Jur., “Counterclaim,” § 40. The pleadings in a…
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Saks v. Harry B. Smith ad Litem of Etta Saks, 145 So. 2d 895 (Fla. 3d DCA 1962)…ever, such a presumption can be attacked, there must be sufficient allegations upon which to base the giving of testimony or the submission of evidence. See Hassey v. Williams, 127 Fla. 734, 174 So. 9; cf. Mather-Smith II v. Fairchild, Fla.App.1961, 135 So. 2d 233. The mere allegation that a person, prior to their adjudication of incompetency, made a conveyance of real property, does not per se establish a cause of action or a premise upon which to authorize evidence to set aside the conveyance. The complain…
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Authorities Cited
- Gardiner v. Goertner, 110 Fla. 377 (Fla. 1932)
- Carroll v. Morrison Hotel Corp., 149 F.2d 404 (7th Cir. 1945)
- Berlin Griffin v. Emmett J. Kelly, 92 So. 2d 515 (Fla. 1957)