Opinion
No. 91-2252.
September 11, 1992. Rehearing Denied October 20, 1992.
Appeal from the Circuit Court, Duval County, Henry Lee Adams, J.
Peter J. Winders and Silvia P. Pitisci of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., Tampa, for appellant.
William S. Graessle of Mahoney, Adams Criser, P.A.; L. Stuart Griggs and Karen K. Cole, Boyd Jenerette, Jacksonville, for appellees.
The appellant raises two points on appeal: (1) Whether the trial court erred in dismissing amended count V for failure to state a cause of action in its August 24, 1987, order; and (2) whether the trial court erred in dismissing count V with prejudice in its June 20, 1991, order. Appellant conceded at oral argument that if we found no error as to point one, it was unnecessary for us to address point two. Since we find that appellant's amended complaint failed to state a cause of action for breach of contract, we determine that the trial court properly dismissed the complaint. We, therefore, affirm as to issue I and do not reach the merits of issue II.
Appellant's amended count V was a breach of contract action based on a contract between appellant, Striton Properties, Inc., and appellee, City of Jacksonville Beach Community Redevelopment Agency (CRA). The cause of action was based on the failure of the CRA to reimburse appellant for certain expenses incurred as a result of performance of the contract. The contract (attached to the complaint) provided, however, that payment of expenses only became due 60 days after a demand for payment with appropriate supporting documents had been made. The complaint failed to allege that such a demand had been made.
On April 9, 1987, the trial court dismissed count V of the complaint with leave to amend within 20 days. Appellant chose not to amend. Therefore, dismissal of the complaint with prejudice was appropriate. See Neida's Boutique, Inc. v. Gabor and Co., 348 So.2d 1196 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 883 (Fla. 1978). We find no error in the trial court's dismissal in light of the failure of the complaint to adequately allege a breach of the agreement between the parties. Affirmed.
The delay in addressing this issue involves a complicated set of procedural maneuvers, including a prior appeal, which need not be discussed in this opinion.
KAHN, J., concurs.
ZEHMER, J., concurring with written opinion.
Appellant's complaint for breach of contract was filed before any breach of contract occurred. Under the terms of the contract, appellant is required to deliver a detailed listing of expenses to CRA for its review, and CRA has 60 days thereafter within which to review and pay all the expenses it approves. No breach of this contract provision can occur until the list has been delivered as required, the 60-day period has expired, and CRA has not made payment. Appellant simply attached the listing to the complaint and demanded payment therein without alleging that CRA had previously received the list of expenses and refused to pay. Appellant is not legally entitled to establish a breach of these contract provisions simply by attaching a list of claimed expenses to its complaint and making demand for payment.
Even if appellant may have firmly believed, based on past dealings between these parties, that CRA would not pay any of the listed expenses upon demand for payment, the complaint does not allege facts sufficient to establish an anticipatory breach on the part of CRA.
Because the complaint failed to allege delivery of the list of expenses and nonpayment within 60 days thereafter, the trial court was left with no choice but to rule that this lawsuit was prematurely filed. This contractual requirement is not the character of condition precedent that may be generally pleaded pursuant to rule 1.120(c), Florida Rules of Civil Procedure.
With this explanation of my reasons for agreeing to affirm, I concur in the court's opinion.