01-1407 HELTON V. GUNDERSON

State: Florida

Court: Florida Third District Court

Docket No: 01-1407 HELTON V. GUNDERSON

Case Date: 11/14/2001

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001

KRIS EDWARD HELTON, Appellant, vs. MARCELLA M. GUNDERSON, Appellee.

** ** ** ** ** CASE NO. 3D01-1407 LOWER TRIBUNAL NO. 96-108

Opinion filed November 14, 2001. An appeal from the Circuit Court for Monroe County, Richard G. Payne, Judge. Kris Helton, in proper person. Mark L. Willis, for appellee.

Before GREEN and FLETCHER, JJ. and NESBITT, Senior Judge.

PER CURIAM. The plaintiff, Kris Edward Helton, appeals the trial court's sua sponte dismissal of Count I of his complaint for failure to attach a copy of the contract upon which he is suing. The

defendant claims, and we agree, that the existence of the alleged contract is a matter to be proved at trial, and that Helton should be permitted to attempt to prove his case. See Amiker v. Mid-

Century Ins. Co., 398 So. 2d 974, 975-76 (Fla. 1st DCA 1981). Finding no merit to Helton's other claims,1 we reverse the dismissal of Count I and remand for the trial court to reinstate the claim.

See Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984)(striking of pleadings is not favored and all doubts should be resolved in favor of the pleadings). 2

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