Mitrani v. Admiral's Port Townhomes, Inc.

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] favor 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. Footnotes [1] Counts I and II of the complaint are legal malpractice claims in which the defendant Admiral's Port Townhouses, Inc. is not sued.