Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast
| Citation | 833 So.2d 286 |
| Decision Date | 27 December 2002 |
| Docket Number | No. 5D02-959.,5D02-959. |
| Parties | CONTRACTORS UNLIMITED, INC., and Glennon Wade, Appellants, v. NORTRAX EQUIPMENT COMPANY SOUTHEAST, etc., Appellees. |
| Court | Court of Appeal of Florida (US) |
Patrick C. Crowell of Patrick C. Crowell, P.A., Orlando, for Appellants.
Michael A. Linsky of Linsky & Reiber, Tampa, for Appellees.
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.
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...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 t......
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Glen Garron, LLC v. Buchwald, Case No. 5D15–2279
...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) ). Th......
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S. Fla. Coastal Elec., Inc. v. Treasures On the Bay II Condo Ass'n, Inc.
...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 writte......
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Jaffer v. Chase Home Fin., LLC
...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 ......
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Business & commercial cases
...were sufficient to support the cause of action for open account. Source Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast , 833 So.2d 286, 287 (Fla. 5th DCA 2002). See Also 1. H & H Design Builders, Inc. v. Travelers’ Indem. Co ., 639 So.2d 697, 700 (Fla. 5th DCA 1994) (“In ord......
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Florida family law rules of procedure
...in the complaint. Therefore, a default judgment must be set aside. Contractors Unlimited, Inc. v. Nortrax Equipment Company Southeast , 833 So. 2d 286 (Fla. 5th DCA 2002). 18.18 RESPONSES 12.140 (a) When Presented. (1) Unless a different time is prescribed in a statute of Florida, a respond......