Attaching reason, not documents, to Rule 1.130.

• Author: Sobczak, Tim W.
• Position: Florida Rule of Civil Procedure

Fla. R. Civ. P. 1.130 appears to be a concise statement of what should and should not be attached to a pleading. Rule 1.130(a) states: Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

Although two of the three sentences contained in this rule address what should not be included within a pleading, Florida litigators appear fixated upon the single sentence of the rule that describes what should be attached and file motions alleging a failure to attach crucial documents to the opposing party's pleadings. (1) These motions are by and large dilatory and, as explained more fully herein, their reliance upon Rule 1.130 often reveals a misunderstanding of the rule. It is time to attach reason to Rule 1.130. Like the comparable federal concept, Rule 1.130 was and is simply intended to provide adequate notice to the parties of claims and defenses made.

Rule 1.130's Main Purpose: Provide Notice

Rule 1.130(a) can generally be said to have two competing purposes. The first sentence requires the pleader to incorporate or attach specified documents; the second and third sentences proscribe excessive incorporation or attachment. (2)

The first sentence's concept of requiring incorporation or attachment of documents appears to date back to the original common law rules adopted by the Florida Supreme Court in 1873. (3) According to Common Law Rule 14, applicable to common law actions in circuit court, "All bonds, notes, bills of exchange, covenants, contracts, and accounts upon which suit may be brought, or a copy thereof, shall be filed with the declaration...." (4) A similar requirement was contained in the rule's various iterations over the years, including Common Law Rule 16 (1936) and Common Law Rule 11 (1950). (5) Since the rule's inception, its purpose in requiring incorporation or attachment of the specified documents has always been "to have the plaintiff apprise the defendant of the nature and extent of the cause of action alleged, in order that he may plead thereto with greater certainty." (6)

The competing concept contained in the second and third sentences finds its derivation from Equity Rule 22 (1950). (7) Equity Rule 22 stated, among other things, that "pleadings...shall contain no unnecessary recitals of deeds, documents, contracts[,] or other instruments.," and "[no papers shall be unnecessarily annexed as exhibits." (8) Clearly, Equity Rule 22's intent was to avoid a surfeit of irrelevant exhibits.

Eventually, the two concepts were merged when, in 1954, the Florida Supreme Court adopted Rule 1.10 as part of the first version of the Rules of Civil Procedure. (9) Rule 1.10 stated the standard in nearly identical language to the modern Rule 1.130 quoted above. Merging the dueling concepts, Rule 1.10's purpose was to "avoid unnecessary recitals of documents not particularly germane to the right of action but to require attachment of those documents upon which the cause of action rests or is dependent." (10)

"Documents Upon Which Action May Be Brought or Defense Made" Rule 1.130 states that only "bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made" must be incorporated in or attached to the pleading. Attorneys often utilize the rule's concluding phrase--"documents upon which action may be brought or defense made"--as part of a motion to dismiss or strike to argue that unnecessary documents must be attached to a pleading. A plain reading of Rule 1.130 demonstrates that this is inappropriate.

The clause "documents upon which action may be brought or defense made" is the last of a list of specified types of documents. The types of documents immediately preceding the concluding clause illustrate those envisaged by the rule in accordance with the textual canon of construction known as ejusdem generis. (11) "[B]onds, notes, bills of exchange, contracts, [and] accounts" are all documents that supply one's right to a cause of action or defense. Thus, the terms "documents upon which action may be brought or defense made" are necessarily other types of documents that supply one's right to a cause of action or defense. Although the comments to Rule 1.130 do not elaborate on its terms, the Authors' Comment to Rule 1.120 (Pleading Special Matters) provides support for this concept when it states that "[o]nly documents which give rise to the cause of action or establish the right which has been breached need be attached." (12)

Rule 1.130 does not contemplate the incorporation or attachment of documents that are merely evidence of a portion of the plaintiff's claim. (13) "The question is not whether the written instrument would be admissible in evidence, but whether the action or the defense is derived from the instrument itself." (14) In other words, if the document at issue did not exist but the pleader would still be able to bring the cause of action or assert the defense that was originally intended, then the document need not be attached.

For example, in Railey v. Skaggs, 220 So. 2d 689 (Fla. 3d DCA 1969), the plaintiff/beneficiary sought, among other things, to remove the defendant/trustee for alleged abuse of fiduciary power. (15) In the complaint, the plaintiff alleged that a certain proposed agreement between the defendant and the plaintiff illustrated the defendant's breach of his fiduciary duty. The plaintiff did not attach the proposed agreement to the complaint. The trial court dismissed the complaint because it purportedly violated Rule 1.130. The appellate court reversed distinguishing between the proposed agreement, which was only material as evidence of the alleged abuse of fiduciary power, and "the document upon which the cause of action is premised," which was the trust instrument itself. (16)

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