INTERMODAL TRANSPORTATION SERVICES, INC., APPELLANT,
v.
KANE FURNITURE, APPELLEE
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Intermodal Transportation Services sued Kane Furniture for detention charges on trailers, claiming damages on an open account theory. The trial court dismissed the complaint at a bench trial, finding the open account theory legally insufficient, but then entered a final judgment without allowing Intermodal to amend its pleading to assert a breach of contract theory despite indicating it would permit such amendment.
The court held that the trial court erred in dismissing the complaint and entering final judgment without affording Intermodal the opportunity to amend its complaint to state a cause of action based on breach of contract, particularly where the May 20 order indicated that the action would continue under a different theory.
[1] A complaint may be dismissed if the plaintiff fails to plead a valid cause of action, such as attempting to recover on an open account when the facts support a breach of…
[2] A trial court may grant a motion to dismiss after hearing counsel's statements regarding the evidence, if it determines that the presented theory of recovery is legally i…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At that point it granted Kane's motion to dismiss but subsequent discussion and comments leave no doubt that everyone anticipated that the action would continue under a theory other than an open account.”
Establishes that the trial court's dismissal of the open account theory was not intended to be final and that amendment was contemplated
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIntermodal agreed to haul trailers from Tampa's railroad yard to Kane Furniture's headquarters in St. Petersburg for unloading and redirection to Tamp…
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FRANK, Judge.
Intermodal had agreed with Kane Furniture to haul trailers from Tampa’s railroad yard to Kane’s headquarters in St. Peters-burg to be unloaded and redirected to Tampa. Incident to the service provided by Intermodal, detention charges accrued when the trailers were not returned to the Tampa yard within the period prescribed in an ICC tariff. Intermodal attributed the delay to Kane and sued on an open account claiming damages in the amount of $45,-765.00.
The matter was scheduled for a non-jury trial on May 13, 1987. We are able to distill from the transcript of that day’s events that counsel for the parties stated their clients’ positions and that which the evidence would disclose. They argued whether the evidence as a matter of law would sustain an action on an open account.
The trial court, it appears, was persuaded that Intermodal could not prevail on the concept of an open account and that a theory based upon breach of contract should have been pleaded.
Thus, it dismissed the complaint.
On May 20, 1987, the trial court entered an order confirming its May 13 ruling and accorded Kane ten days within which to respond to an amended pleading to be filed by Intermodal. The order does not, however, fix a time within which Intermodal’s pleading was to be filed.
On June 8,1987, without notice to or service of Kane’s proposed judgment upon Intermodal, the trial court entered a final judgment in favor of Kane, and on August 4, 1987, it denied Intermodal’s post-judgment motions. Intermodal timely appealed.
Kane urges us to the view that the record reflects an understanding that the May 13 hearing terminated this matter thus resulting in an erroneous entry of the May 20 order. Kane expands its contention to include the notion that the trial court would have granted Intermodal’s post-judgment motions had it agreed that the May 20 order was erroneously entered.
We reject Kane’s position. After listening to the attorneys’ statements, the trial court concluded that Intermodal did not have a valid claim based upon an open account. At that point it granted Kane’s motion to dismiss but subsequent discussion and comments leave no doubt that everyone anticipated that the action would continue under a theory other than an open account.
Moreover, the record reflects that Kane was furnished with a copy of the May 20 order prior to its execution and was accorded time to announce, which it failed to do, any objection to its entry by the trial court.
We reverse and vacate the final judgment entered on June 8. This matter is remanded to permit Intermodal the opportunity to amend its complaint to state a cause of action based upon a claimed breach of contract. See, Neu v. Turgel, 480 So. 2d 216 (Fla. 3d DCA 1985), cause dismissed, 486 So. 2d 598 (Fla.1986).
DANAHY, C.J., and RYDER, J., concur.
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Cited By
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Gibbons v. L.W. Blake Mem'l Hosp., 538 So. 2d 1386 (Fla. 2d DCA 1989)…ition, the record does not reveal whether the appellant was given separate notice of the hearing to dismiss with prejudice. Although these deficiencies may reveal the possibility of procedural error, Intermodal Transp. Serv., Inc. v. Kane Furniture, 522 So. 2d 1048 (Fla.2d DCA 1988); Neu v. Turgel, 480 So. 2d 216 (Fla.3d DCA 1985), cause dismissed, 486 So. 2d 598 (Fla.1986), the appellant’s failure to timely appeal the final judgment precludes this court from considering such issues. A motion for relief from j…
Authorities Cited
- Allstate Ins. Co. v. Baldwin, 480 So. 2d 216 (Fla. 3d DCA 1985)
- NEU v. Turgel, 480 So. 2d 216 (Fla. 3d DCA 1985)