DALCAMP, INC., APPELLANT,
v.
FIRST NATIONAL BANK OF HIALEAH, ETC., ET AL., APPELLEES
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In this appeal from a summary judgment, the Florida District Court of Appeal affirmed dismissal of Dalcamp's fraud-based counterclaim against First National Bank of Hialeah for failure to release mortgage liens, but permitted Dalcamp to amend and assert an alternative theory based on wrongful failure to issue releases despite knowledge of the superior Furlong-Dalcamp agreement.
The court affirmed the summary judgment dismissing the fraud-based counterclaim because the bank met its burden to establish conclusively there was no genuine issue of material fact. However, the court reversed implicitly by permitting Dalcamp to file an amended counterclaim based on wrongful failure to issue releases despite the bank's knowledge of the superior Furlong-Dalcamp agreement and its release provisions.
[1] A summary judgment is properly entered when the moving party conclusively establishes that no genuine issue of material fact exists regarding the claim of fraud or misrep…
[2] A party may be permitted to amend a counterclaim to assert a cause of action for specific performance and damages based on the wrongful failure to issue mortgage releases…
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Join FLexlaw to unlock all legal intelligence“We are convinced that the bank successfully met its burden to establish conclusively that there was no genuine issue of material fact as to the claim of fraud or misrepresentation as alleged in the counterclaim as drafted.”
Establishes that the summary judgment was properly granted on the fraud theory
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDalcamp asserted a counterclaim against First National Bank alleging that the bank fraudulently misrepresented it would grant releases from its mortga…
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SCHWARTZ, Judge.
After our reversal of a summary judgment rendered for the plaintiff-mortgagee against both defendants in Furlong v. First National Bank of Hialeah, 329 So. 2d 406 (Fla. 3d DCA 1976), cert. denied, 341 So. 2d 291 (Fla.1976),1 and further discovery had been developed below, the plaintiff-bank again moved for summary judgment as against the defendant Dalcamp with respect only to the counterclaim for specific performance and damages which had been asserted by Dalcamp against it. The basis of the counterclaim was the allegation that the bank had affirmatively and fraudulently misrepresented to Dalcamp that it would grant releases from its own mortgage lien on the property in question upon payments made by Dalcamp to Furlong under the agreement between those two parties and then had failed to grant those releases. The trial judge granted the summary judgment sought as to the counterclaim, and Dalcamp appealed.
We are convinced that the bank successfully met its burden to establish conclusively that there was no genuine issue of material fact as to the claim of fraud or misrepresentation as alleged in the counterclaim as drafted. The summary judgment was therefore correctly entered. The record below, however, demonstrates that Dalcamp may well be able properly to claim both specific performance and damages upon another theory, that is, the wrongful failure of the bank to issue releases from its own mortgage, notwithstanding its actual knowledge of the superiority of the Furlong-Dalcamp agreement and of its release provisions. Accordingly, the judgment below is affirmed with directions that, upon remand, Dalcamp may file such amended counterclaim as it may be advised.2 Gold Coast Crane Service, Inc. v. Watier, 257 So. 2d 249 (Fla.1971); Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1963); Forte v. Tripp & Skrip, 339 So. 2d 698 (Fla. 3d DCA 1976); Sorrells v. Mullins, 303 So. 2d 385 (Fla. 3d DCA 1974).
Affirmed with directions.
. The basic outline of the unbelievably complex factual and legal situation presented in this case is set forth in that opinion.
. We of course issue no prediction as to the sufficiency of any such amended pleading. We merely think that Dalcamp should be given another try at establishing its alleged cause of action for specific performance and damages.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sunshine Kitchens, Inc. v. Mallin, 388 So. 2d 1260 (Fla. 3d DCA 1980)…d, the plaintiff is to be afforded an opportunity to amend the complaint. Gold Coast Crane Service, Inc. v. Watier, 257 So. 2d 249 (Fla.1971); Greenburg v. Johnston, 367 So. 2d 229 (Fla.2d DCA 1979); Dal-camp, Inc. v. First National Bank of Hialeah, 366 So. 2d 153 (Fla.3d DCA 1979); Rauch, Weaver, Millsaps & Co. v. Campbell-Dickey Marketing Services, Inc., 354 So. 2d 403 (Fla.4th DCA 1978); Forte v. Tripp & Skrip, 339 So. 2d 698 (Fla.3d DCA 1976). The plaintiff’s failure to request leave to amend is not an im…
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Suris v. Tropical Fed. Sav. & Loan Ass'n, 515 So. 2d 1049 (Fla. 3d DCA 1987)…698, 700 (Fla. 3d DCA 1976). Accord DeAtley v. McKinley, 497 So. 2d 962 (Fla. 1st DCA 1986); Home Health Servs. of Sarasota, Inc. v. McQuay-Garrett, Sullivan & Co., 462 So. 2d 605 (Fla. 2d DCA 1985); see Dalcamp, Inc. v. First Nat’l Bank of Hialeah, 366 So. 2d 153 (Fla. 3d DCA 1979) (where plaintiff moved for summary judgment which the trial court granted, defendant may amend pleadings). Contra Wyman v. Robbins, 513 So. 2d 230 (Fla. 1st DCA 1987). In the case before us, the record disclosed such a defense to…
Authorities Cited
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Gold Coast Crane Serv., Inc. v. Watier, 257 So. 2d 249 (Fla. 1971)
- Furlong v. First Nat'l Bank OF Hialeah, 329 So. 2d 406 (Fla. 3d DCA 1976)
- Forte v. Tripp & Skrip, 339 So. 2d 698 (Fla. 3d DCA 1976)
- Sorrells v. Mullins, 303 So. 2d 385 (Fla. 3d DCA 1974)