County Civil Court:  CIVIL PROCEDURE – Dismissal – trial court erred in dismissing breach of contract action by finding that the credit card assignment had to be attached to the complaint – the Rules of Civil Procedure do not require that an assignment be attached to complaint – Trawick’s explains that an assignment is not a document that is a prerequisite to filing a breach of contract action – Dismissal reversed.  PRA, III, LLC v. Little, Appeal No. 05-0005AP-88A (Fla. 6th Cir. App. Ct. July 12, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

PRA III, LLC,

                        Appellant,

 

vs.                                                                                    Appeal No. 05-0005AP-88A

                                                                                        UCN522005AP000005XXXXCV

 

MONA LITTLE,

                        Appellee.

_________________________________________/

 

Appeal from Dismissal

Pinellas County Court

Judge Robert Michael

 

Leslie M. Schneider, Esquire

Attorney for Appellant

 

H. Michael Evans, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by PRA III, LLC (PRA), from the Order Granting Defendant’s Motion to Dismiss Second Amended Complaint, entered December 21, 2004, in favor of Mona Little (Little).  Upon review of the Initial Brief,[1] the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

            The record shows that the PRA filed a Complaint for Damages against Little seeking to recover a credit card debt in the principal sum of $14,971.43, pursuant to a credit card agreement between Little and MBNA American Bank (MBNA).  PRA alleged that it was the holder and owner of the debt pursuant to an assignment from the original lender, MBNA.  Attached to the Complaint were two exhibits, the MBNA credit card agreement and a MBNA credit card statement, with a closing date of June 8, 2000, showing a charge-off adjustment of $14,971.43, leaving a zero balance.

Little moved to dismiss the Complaint for PRA’s failure to attach a copy of the assignment pursuant to the Florida Rules of Civil Procedure, Rule 1.130.  In response, PRA filed an Affidavit of Assignment, signed by MBNA’s Charge-Off Sales Coordinator, stating that the amount of $14,971.43, had been assigned from MBNA to Portfolio Recovery Associates on May 25, 2001.  The trial court entered, on March 24, 2004, its Order of Dismissal finding that attachment of the assignment was necessary to establish PRA’s standing to file suit against Little.  PRA filed an Amended Complaint and a Second Amended Complaint, with essentially the same allegations and exhibits attached, resulting in the dismissal the Second Amended Complaint with prejudice.[2]     

            Before this Court, PRA argues that the trial court erred in dismissing its cause of action by finding that the assignment had to be attached to the complaint pursuant to Rule 1.130(a).  This Court agrees.  Rule 1.130(a) provides that “[a]ll bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made . . . shall be incorporated in or attached to the pleading.”  The Rule does not state that an assignment must be attached to a complaint nor is there case law that requires such an attachment pursuant to Rule 1.130(a).

Rather, as explained by H. Trawick, Trawick of Florida Practice and Procedure,

§ 6 -15:  “Documents relating to the right to bring the action or that are prerequisites to liability are not required.  In this category are letters of administration, assignments of contracts, mortgages, judgments and other instruments unless a party to the assignment is suing for breach of the assignment . . . ”  (emphasis added); see also Bradenton Spine and Joint Center, Inc. v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp.  544b (Fla. Sarasota Cty. Ct.)(denying motion to dismiss for failure to attachment copy of assignment as cause of action was based on breach of the insurance contract, not breach of the assignment).[3]  Accordingly, since PRA was suing for breach of the credit card agreement, not breach of the assignment, it was not required to attach a copy of the assignment to withstand a motion to dismiss.

  The Court notes that the trial court cited two decisions as examples of why attachment of the assignment to a complaint is necessary to determine the validity of a complaint, Morales v. All Right Miami, Inc., 755 So.2d 198 (Fla. 3d DCA 2000), and Florida Coast Enterprises v. Rosen, 116 So.2d 788 (Fla. 2d DCA 1959).  In Morales, the Third District Court of Appeal held that the trial court erred in not setting aside the Plaintiff’s default judgment where the complaint and exhibits, upon which the default was entered, demonstrated that the Plaintiff was not a payee of the restitution order sought to be enforced against the Defendant.  In Florida Coast Enterprises, the Second District Court of Appeal concluded that the cause of action should have been dismissed as the attached purported assignment did not expressly assign rights to the Plaintiffs.  While these cases support the well-settled law that when attached exhibits contradict the allegations of the complaint, the plain meaning of the exhibits control,[4] they do not hold that attachment of an assignment to a complaint is necessary to maintain a cause of action, such as a breach of contract complaint, as presented in this case. 

Therefore, it is,

            ORDERED AND ADJUDGED that the Order Granting Defendant’s Motion to Dismiss Second Amended Complaint with Prejudice is reversed and this cause is remanded to the trial court for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of June 2005.

 

 

 

                                                ________________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies furnished to:

Judge Robert Michael

 

Leslie M. Schneider, Esquire

7765 S.W. 87th Avenue, # 101

Miami, FL  33173

 

H. Michael Evans, Esquire

2123 N.E. Coachman Road, Suite A

Clearwater, FL  33765


[1] The Court notes that Little failed to file an Answer Brief even after being directed to do so.  However, the Court cannot not reverse the trial court based solely on Little’s failure to file an Answer Brief and must review this case on the merits of the Initial Brief and the appellate record.  See e.g. State, Board of Optometry v. Florida Society of Opthalmology, 538 So.2d 878, 888 (Fla. 1st DCA 1988)(explaining that appellate court must review case on the merits even when no answer brief is filed).   

[2] As set for in the order of dismissal, entered December 21, 2004, PRA is a wholly-owned subsidiary of Portfolio Recovery Associates.  This fact is undisputed in the record.    

 

[3] While not controlling, the Court finds this county court case informative given the lack of appellate case law on this issue.

 

[4] See e.g. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240, 1242 (Fla. 2000).