McClurkin v. Parrish Volvo, Inc.

• Decision Date: 06 August 1975
• Docket Number: No. X--59,X--59
• Parties: Mary McCLURKIN, Appellant, v. PARRISH VOLVO, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 85

317 So.2d 85

Mary McCLURKIN, Appellant, v. PARRISH VOLVO, INC., a corporation, Appellee.

No. X--59.

District Court of Appeal of Florida, First District.

Aug. 6, 1975.

Rehearing Denied Sept. 11, 1975.

William H. Folsom, Jr., Powers, Folsom & Adams, Jacksonville, for appellant.

Ellis T. Fernandez, Jr., Hazard & Fernandez, Jacksonville, for appellee.

BOYER, Chief Judge.

We are here presented with a novel factual situation relative to construction or interpretation of Rule 1.130 RCP.

Appellant, plaintiff in the trial court, purchased a vehicle from appellee. Her attorney thereafter wrote a letter to appellee purporting to be a 'notice of revocation' in which he enumerated in detail various alleged defects in the vehicle and various problems alleged to have been experienced incident to the operation thereof. Suit was thereafter filed 'for revocation of acceptance with relief as provided in Florida Statute Chapter 672.' Plaintiff attached a copy of the above mentioned letter to the complaint, marking same as an exhibit. The complaint contained an allegation that plaintiff had experienced 'the problems listed in plaintiff's attorney's notice of breach of warranties letter * * * a copy of which is attached hereto and marked Plaintiff's Exhibit B'. The defendant, appellee here, filed a motion to strike and a motion to dismiss. At the hearing the learned trial judge announced his intention to rule that the matters contained in the exhibit should have been pled in the complaint and that accordingly the motion to strike the exhibit would be granted and the complaint dismissed with leave to amend by reciting in the amended complaint those matters contained in the stricken exhibit. Plaintiff's attorney took the position that the attachment of the exhibit, to be considered as a part of the allegations of the complaint, was in accordance with Rule 1.130 RCP and stubbornly refused to amend the complaint, whereupon the trial judge entered the following order:

'This cause having come on to be heard after due notice on the motion of the defendant to dismiss and to strike and the court having heard argument of counsel and the court having announced its intention to rule that the matters contained in exhibit B should have been pled in the complaint and that, accordingly, exhibit B should be stricken and the complaint amended, and plaintiff's counsel having announced he did not wish leave to amend but preferred that, instead, any order of dismissal by with prejudice, it is upon consideration thereof

'ORDERED AND ADJUDGED that:

'Plaintiff's complaint and this cause of action be, and the same are hereby, dismissed with prejudice.'

Although it appears to us that the plaintiff would have been on safer grounds, much time and expense would have been saved and this appeal (which has been carefully and exhaustively briefed and argued) would have been rendered unnecessary had appellant's counsel followed the simple expediency of retyping his complaint, and setting forth therein the allegations of the stricken exhibit, nevertheless appellant's point has been preserved and properly presented to us, albeit expensively in time, money and judicial labors, and she is entitled under the laws of this State to have the point resolved by this Court.

The exact point here presented appears never to have been heretofore ruled upon by any appellate court in this State. Research reveals that there are numerous cases considering the effect of failure to attach exhibits and at least three cases ¹ have dealt with the responsibility of the trial court to consider exhibits attached to the complaint. However, no case has been found directly passing upon the propriety of...