Mitrani v. Admiral's Port Townhomes, Inc.

District Court of Appeal of Florida

Mitrani v. Admiral's Port Townhomes, Inc.

553 So. 2d 244, 14 Fla. L. Weekly 2703, 1989 Fla. App. LEXIS 6443, 1989 WL 139509

CourtDistrict Court of Appeal of Florida

DecidedNovember 21, 1989

DocketNo. 89-906

StatusPublished

This text of 553 So. 2d 244 (Mitrani v. Admiral's Port Townhomes, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mitrani v. Admiral's Port Townhomes, Inc., 553 So. 2d 244, 14 Fla. L. Weekly 2703, 1989 Fla. App. LEXIS 6443, 1989 WL 139509 (Fla. Ct. App. 1989).

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Opinion

PER CURIAM.

This is an appeal by the plaintiffs Victor and Delores Mitrani from an adverse final judgment on the pleadings entered below in [245]*245favor of the defendant Admiral’s Port Townhomes, Inc. in a breach of contract action contained in count III of the complaint filed below¹. We reverse the final judgment under review upon a holding that (a) count III of the complaint states a cause of action for breach of contract against the defendant for refusing to repurchase the plaintiffs’ condominium unit, and (b) the facts, as pled in counts I and II filed against certain codefendants not involved in this appeal, cannot, as urged, defeat this breach of contract claim because there is no allegation in count III which incorporates the facts pled in counts I and II, and, consequently, such facts form no basis for the plaintiffs’ claim against the defendant in count III. See Fla.R.Civ.P. 1.110(g), 1.130(b); 40 Fla.Jur.2d Pleadings §§ 16-17, 49 (1982); c.f Vann v. Hobbs, 197 So.2d 43, 45 (Fla. 2d DCA 1967) (“[Ijnconsistent positions taken by a party through the pleadings [in different counts] he files in an action may not be used by an opposing party as proof of an issue.”); Hines v. Trager Constr. Co., 188 So.2d 826, 828-29 (Fla. 1st DCA) (same), cert. denied, 194 So.2d 618 (Fla.1966).

The final judgment under review is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

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PER CURIAM.

This is an appeal by the plaintiffs Victor and Delores Mitrani from an adverse final judgment on the pleadings entered below in [245]*245favor of the defendant Admiral’s Port Townhomes, Inc. in a breach of contract action contained in count III of the complaint filed below¹. We reverse the final judgment under review upon a holding that (a) count III of the complaint states a cause of action for breach of contract against the defendant for refusing to repurchase the plaintiffs’ condominium unit, and (b) the facts, as pled in counts I and II filed against certain codefendants not involved in this appeal, cannot, as urged, defeat this breach of contract claim because there is no allegation in count III which incorporates the facts pled in counts I and II, and, consequently, such facts form no basis for the plaintiffs’ claim against the defendant in count III. See Fla.R.Civ.P. 1.110(g), 1.130(b); 40 Fla.Jur.2d Pleadings §§ 16-17, 49 (1982); c.f Vann v. Hobbs, 197 So.2d 43, 45 (Fla. 2d DCA 1967) (“[Ijnconsistent positions taken by a party through the pleadings [in different counts] he files in an action may not be used by an opposing party as proof of an issue.”); Hines v. Trager Constr. Co., 188 So.2d 826, 828-29 (Fla. 1st DCA) (same), cert. denied, 194 So.2d 618 (Fla.1966).

The final judgment under review is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

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553 So. 2d 244, 14 Fla. L. Weekly 2703, 1989 Fla. App. LEXIS 6443, 1989 WL 139509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitrani-v-admirals-port-townhomes-inc-fladistctapp-1989.

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