HARRY PEPPER & ASSOCIATES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
HARLEY O. AL LASSETER, SR. ET AL., APPELLEES
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Harry Pepper & Associates appealed the dismissal of its amended complaint alleging tortious interference with a contract, wrongful institution of legal proceedings, and champerty/maintenance against defendants. The Florida appellate court affirmed the dismissal, finding the pleading defective due to inconsistencies between allegations and incorporated exhibits, failure to allege required elements of malicious prosecution, and lack of evidence supporting the champerty claim.
The trial court properly dismissed the amended complaint because: (1) the incorporated deposition created inconsistencies that neutralized the allegations and showed defendants had a privileged interest in public health; (2) the second count failed to allege the essential elements of absence of probable cause and malice, which cannot be inferred; and (3) no allegations supported that defendants would share in lawsuit proceeds or that they were strangers to the prior action.
[1] Exhibits attached to a pleading are considered a part thereof for all purposes.
[2] Inconsistency between general allegations in a complaint and specific facts in an incorporated exhibit neutralizes both allegations.
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Join FLexlaw to unlock all legal intelligence“Any exhibit attached to a pleading shall be considered a part thereof for all purposes”
Establishes that the incorporated deposition must be considered when evaluating the motion to dismiss
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Join FLexlaw to unlock all legal intelligencePlaintiff Harry Pepper & Associates held a contract with the City of Opalocka, Florida. The amended complaint attached a deposition of Harley O. Lasse…
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Plaintiff, Harry Pepper & Associates, Inc., appeals from a final order that dismissed its amended complaint against the appellees with prejudice. Plaintiff does not challenge the “with prejudice” part of the order; it only argues that error was made in the dismissal of its amended complaint.
Plaintiff’s position on appeal is that its amended complaint contained three counts. Plaintiff says the first count alleged a tor-tious interference by the defendants with a contract which it held with the City of Opalocka, Florida. It attached the deposition of one Harley O. Lasseter, Sr., taken in a different law suit, to the amended complaint as Exhibit Four and alleged that the deposition was incorporated therein as if copied in full.
“Any exhibit attached to a pleading shall be considered a part thereof for all purposes”. Rule 1.130(b), R.C.P., 30 F.S.A. In considering the motion to dismiss the trial court was required to consider the exhibit (deposition) attached to and incorporated in the amended complaint. Dade County v. Harris, Fla. 1956, 90 So.2d 316.
There is an inconsistency between the general allegations of material facts in the amended complaint and the specific *737facts revealed by the exhibit (deposition) and they have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable. See Shelton v. Eisemann, 75 Fla. 644, 79 So. 75 (1918); Williams v. Peninsular Grocery Co., 73 Fla. 937, 75 So. 517 (1917); State v. Seaboard Air Line Ry., 56 Fla. 670, 47 So. 986 (1908); and 25 Fla.Jur. Pleading § 31.
The exhibit attached and incorporated in the amended complaint also shows that the defendants had a legitimate interest in the maintenance and establishment of the public health of this community. Such actions have been held to be justified or privileged in suits of this type. See Middlesex Concrete, etc. v. Carteret Industrial Ass’n, 37 N.J. 507, 181 A.2d 774 (1962).
Plaintiff maintains the second count of its amended complaint alleged the wrongful institution of legal proceedings. The second count failed to allege the absence of probable cause and malice. Plaintiff argues that it sufficiently alleged lack of probable cause in the amended complaint and that a jury may infer malice when it finds a lack of probable cause and that it is not necessary to allege each element of this cause of action. The rule is that it is necessary to allege the absence of probable cause and the presence of malice, together with the other elements in actions of this type, and if any one element is lacking the action will not lie. See Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Wilson v. O’Neal, Fla.App.1960, 118 So.2d 101; and 21 Fla.Jur. Malicious Prosecution § 4.
“An essential allegation will not be imported into the declaration by mere inference or intendment”. Southern Liquor Distributors v. Kaiser, 150 Fla. 52, 7 So.2d 600 (1942). See also Edwards v. Maule Industries, Inc., Fla.App. 1962, 147 So.2d 5.
Finally, plaintiff contends that the trial court erred in dismissing its civil action for champerty and maintenance against the defendants. Assuming arguendo, that a civil action lies in Florida for champerty and maintenance, there are no allegations in these pleadings that defendants were to share in the proceeds of any law suit. It affirmatively appears from the exhibit that defendants had an interest in the prior action; that they were not strangers or intermeddlers and they had a right to assist in prosecuting the prior actions. See Nationwide Mutual Insurance Co. v. McNulty, Fla.1970, 229 So.2d 585; Brush v. City of Carbondale, 229 Ill. 144, 82 N.E. 252 (1907); and Middlesex Concrete Products, supra.
For these reasons the final order of dismissal with prejudice is
Affirmed.
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Padgett v. First Fed. Sav. & Loan Ass'n OF Santa Rosa Cnty., 378 So. 2d 58 (Fla. 1st DCA 1979)…een the general allegations of material facts in a complaint and specific facts revealed by the exhibit attached to it has the effect of neutralizing each allegation, rendering the pleading objectionable. Harry Pepper & Associates, Inc. v. Lasseter, 247 So. 2d 736 (Fla. 3rd DCA 1971). See Rule 1.130(b), Florida Rules of Civil Procedure. We apply this principle in this case, and in so doing, we resolve any doubts concerning the sufficiency of the pleadings to raise án issue precluding foreclosure prior to a ju…
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Harris v. The Lewis State Bank, 482 So. 2d 1378 (Fla. 1st DCA 1986)…e imprisonment against the bank. 5. Whether the complaint alleges the existence of a duty owed by the appellee to appellant. 6. Whether the complaint alleges a basis for an award of punitive damages. . Harry Pepper & Associates, Inc. v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971), cert. den., 252 So. 2d 797 (Fla.1971). . See cases cited in 24 Fla.Jur.2d, False Imprisonment and Malicious Prosecution § 18 n. 14. . Annot., 66 A.L.R.3d 10. 16 (1975). . Campbell v. Yellow Cab Co., 137 F. 2d 918 (3d Cir.1943)…
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Hillcrest Pac. Corp. v. Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999)…1056] Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994), rev. denied, 659 So. 2d 272 (Fla.1995); Len Hazen Painters, Inc. v. Wood-Hopkins Constr. Co., 396 So. 2d 1233 (Fla. 1st DCA 1981). Moreover, as the case of Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971), instructs: [if there] is an inconsistency between the general allegations of material facts in the ... complaint and the specific facts revealed by the exhibit [attached or referred to in the complaint] ... they have the…
Previewing 3 of 51 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tatum Bros. Real Est. & Inv. Co. v. Watson, 92 Fla. 278 (Fla. 1926)
- Williams v. Peninsular Grocery Co., 73 Fla. 937 (Fla. 1917)
- Wilson v. Truby O'Neal, 118 So. 2d 101 (Fla. 1st DCA 1960)
- Nationwide Mut. Ins. Co. v. Kendrick D. McNULTY, 229 So. 2d 585 (Fla. 1969)
- State v. Seaboard Air Line Railway, 56 Fla. 670 (Fla. 1908)
- Shelton v. Eisemann, 75 Fla. 644 (Fla. 1918)
- S. Liquor Distribs. Inc. v. Kaiser, 150 Fla. 52 (Fla. 1942)
- Edwards v. Maule Indus., Inc., 147 So. 2d 5 (Fla. 3d DCA 1962)
- Glisson v. Cent. OF Ga. Ry. Co., 147 So. 2d 5 (Fla. 3d DCA 1962)
- Dade Cnty. v. Harris, 90 So. 2d 316 (Fla. 1956)