Affordable Homes, Inc. v. Devil's Run, Ltd., ZZ-178
| Decision Date | 05 January 1982 |
| Docket Number | No. ZZ-178,ZZ-178 |
| Citation | 408 So.2d 679 |
| Parties | AFFORDABLE HOMES, INC., Appellant, v. DEVIL'S RUN, LIMITED, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Stern, Gainesville, for appellant.
Phillip A. DeLaney, Gainesville, for appellee.
Affordable Homes, Inc.'s appeal urges that the lower court abused its discretion in dismissing its amended complaint with prejudice for failure to state a cause of action. We agree and reverse and remand with instructions.
Affordable's two-count, amended complaint alleged breach of contract and sought in the alternative damages and specific performance. The subject of the complaint concerned two real estate land sale contracts. Under the terms of those contracts, Affordable agreed to purchase several lots from the appellee. One contract contained the following provisions:
At Paragraph 2.B.:
Buyer agrees to close at least two lots every 90 days from date of platting.
At Paragraph 2.C.:
Buyer agrees to close all lots within 270 days.
At Paragraph 2.G.:
In the event the buyer fails to close any of the above named parcels within the time specified, it will constitute a default and the Seller will have no further obligation to convey any of the remaining parcels.
At Paragraph 15:
OTHER AGREEMENTS: This contract constitutes the entire agreement between the parties, and any changes, amendments, or modifications hereof shall be void unless the same are reduced to writing and signed by the parties hereto.
The body of the complaint contained general allegations that the appellant had performed all conditions subsequent and had tendered performance by being ready, willing, and able to close the bulk of the lots which remained unpurchased. However, the appellant's amended complaint also incorporated by reference the two subject land sales contracts as exhibits, as well as exhibit "D", a letter revealing that the appellant tendered performance on October 24, 1979, more than 270 days from the execution of the contract. The appellee moved to dismiss the amended complaint, asserting that the contracts on their faces showed a breach by the appellant prior to any alleged breach by appellee; that the amended complaint failed to allege tender of performance, and finally that paragraph 15 of the contract, the integration clause, prevented any extension of the closing dates contained therein, unless the extensions were in writing, and that the amended complaint and exhibits failed to show any such extensions.
At the outset we hold that the trial court had the authority to dismiss the amended complaint without prejudice. Although the appellant properly pled that it had performed all conditions precedent as required by the contracts, nevertheless, if "there is an inconsistency between the general allegations of material fact in (a) complaint and the specific facts revealed by (an) exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable." Schweitzer v. Seaman, 383 So.2d 1175, 1178 (Fla. 4th DCA 1980). See also Plowden & Roberts, Inc. v. Conway, 192 So.2d 528 (Fla. 4th DCA 1966). Here, the appellant's exhibit "D" clearly reveals that the appellant's duty of performance was late.
However, the trial court abused its discretion in dismissing the complaint with prejudice. Generally, the trial court will give leave to amend a deficient complaint unless there has been an abuse of the amendment privilege, or the...
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...American Seafood v. Clawson, 598 So.2d 273 (Fla. 3d DCA), review dismissed, 606 So.2d 1164 (Fla.1992); Franz; Affordable Homes v. Devil's Run, 408 So.2d 679 (Fla. 1st DCA 1982). The loan documents, which are controlling in this case, reference to and incorporate each other to form a complet......
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DK Arena, Inc. v. EB ACQUISITIONS I, LLC
...such as an extension of the time of performance agreed to by" the other party to the contract. Affordable Homes, Inc. v. Devil's Run, Ltd., 408 So.2d 679, 680 (Fla. 1st DCA 1982). The third district followed Young and Affordable Homes in United of Omaha Life Insurance Co. v. Nob Hill Associ......
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DK Arena, Inc. v. Eb Acquisitions I, LLC
...at 324–25 (citing United of Omaha Life Ins. Co. v. Nob Hill Assocs., 450 So.2d 536 (Fla. 3d DCA 1984); Affordable Homes, Inc. v. Devil's Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982); Young v. Pottinger, 340 So.2d 518 (Fla. 2d DCA 1977)).6 However, the waiver doctrine does not support the di......
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Bowen v. Aetna Life and Cas. Co., 85-521
...or the complaint shows on its face that there is a deficiency which cannot be cured by amendment. Affordable Homes, Inc. v. Devil's Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982). See also Old Republic Ins. Co. v. Wilson, 449 So.2d 421 (Fla. 3d DCA 1984). Denial of the motion for leave to ame......