JOHN MICHAEL BUSH, APPELLANT,
v.
BURT BELENKE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Bush sued Belenke for return of an emerald ring that Bush had given Belenke to sell on commission. The trial court granted summary judgment for Belenke based on his claim that he never personally possessed the ring because it was held by his corporation. The appellate court reversed, finding genuine issues of material fact precluding summary judgment.
Summary judgment was improperly entered because genuine issues of material fact remained. The court held that an issue exists as to whether Bush dealt with Belenke individually or as a corporate agent, and whether Belenke possessed constructive possession of the ring.
[1] Genuine issues of material fact preclude the entry of summary judgment.
[2] Individual officers and agents of a corporation are personally liable to third persons for acts performed within the scope of their employment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A review of the record reflects that there remains genuine issues of material facts which necessitate a reversal.”
Establishes the standard that summary judgment cannot be entered when material factual disputes exist
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBush gave an emerald ring to Belenke to sell on a commission basis. When Bush demanded return of the unsold ring, Belenke refused. Belenke claimed in …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Replevin cases and more on FLexlaw
PER CURIAM.
In this replevin action, John Bush, the plaintiff, appeals the entry of a summary final judgment for the defendant Burt Be-lenke.
John Bush filed the instant action for return of an emerald ring or, in the alternative, for damages. He alleged that he had given the ring to Burt Belenke to sell on a commission basis. Subsequently, Bush demanded return of the ring from Belenke who was unable to sell it, but refused to return it. In his answer, Belenke alleged that he never was personally in possession of the ring. He further alleged that the ring was in the possession of Belenke Co., Inc., d/b/a the House of Diamonds, of which he is a shareholder and corporate officer. Thereafter, on this ground Belenke moved for summary judgment. Bush filed an affidavit in opposition to the motion for summary judgment and stated that he dealt with Belenke as an individual who at no time represented himself to be acting on behalf of a corporation but rather made it a point that he (Bush) was dealing with him (Belenke) personally. After hearing argument of counsel, the trial judge entered summary final judgment for Belenke and Bush perfected this appeal.
A review of the record reflects that there remains genuine issues of material facts which necessitate a reversal. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
For example, an issue exists as to whether Bush dealt with Belenke as an .individual or as an agent for the House of Diamonds (Belenke Co., Inc.) when he gave Belenke the ring. Further, individual officers and agents of a corporation are personally liable to any third person even if such acts are performed within the scope of their employment or as corporate officers or agents. See Dade Roofing and Insulation Corp. v. Torres, 369 So. 2d 98 (Fla.3d DCA 1979).
In addition, in a replevin action, although possession by the defendant of the subject property is essential, actual manual possession is not necessary. It is sufficient if a defendant has constructive possession, that is has such control over the property that he may deliver the possession of it, if he so desires, as for example, where an agent holds property for his principal. See Miller v. Townhouse Development Corp., 178 So. 2d 730 (Fla.2d DCA 1965); 66 Am.Jur.2d Replevin § 26 (1973).
Although Belenke alleges he was acting as an agent for the House of Diamonds (Belenke Co., Inc.), an issue exists as to whether he has constructive possession of the ring which would preclude the entry of summary judgment.
Accordingly, the summary judgment entered for Belenke is reversed and the cause remanded to the trial court for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Caraccia v. U.S. Bank, 185 So. 3d 1277 (Fla. 4th DCA 2016)…physical possession of the note, so long as the plaintiff “had the power to exercise control over it, then [the plaintiff] had constructive possession of the note.” Deakter v. Menendez, 830 So. 2d 124, 128 (Fla. 3d DCA 2002) (citing Bush v. Belenke, 381 So. 2d 315, 316 (Fla. 3d DCA 1980) (defining constructive possession as possession in which a person “has such control over the property that he may deliver the possession of it, if he so desires, as for example, where an agent holds property for his principal…
-
Littman v. Commercial Bank & Tr. Co., 425 So. 2d 636 (Fla. 3d DCA 1983)…on are personally liable where they have committed a tort even if such acts are performed within the scope of their employment or as corporate officers or agents. Adams v. Brickell Townhouse, Inc., 388 So. 2d 1279 (Fla.3d DCA 1980); Bush v. Belenke, 381 So. 2d 315, 316 (Fla.3d DCA 1980); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So. 2d 73 (Fla.3d DCA 1973) and cases cited; see Dade Roofing and Insulation Corp. v. Torres, 369 So. 2d 98 (Fla.3d DCA 1979). Since Irving Littman personally handled the…
-
Bernard Adams (a misnomer whose correct name is Bernard Abrams) v. Brickell Townhouse, Inc., 388 So. 2d 1279 (Fla. 3d DCA 1980)…n are personally liable to any third person even if such acts are performed within the scope of their employment or as corporate officers or agents. See Dade Roofing and Insulation Corp. v. Torres, 369 So. 2d 98 (Fla. 3d DCA 1979). Bush v. Belenke, 381 So. 2d 315, 316 (Fla. 3d DCA 1980). CIC Leasing Corp. v. Dade County Linen and Furniture Co., 279 So. 2d 73 (Fla. 3d DCA 1973). The ruling below is defended on the ground that facts necessary to disregard the corporate entity (“pierce the corporate veil”) wer…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Dade Roofing & Insulation Corp. v. Torres, 369 So. 2d 98 (Fla. 3d DCA 1979)
- Miller v. Townhouse Dev. Corp., 178 So. 2d 730 (Fla. 2d DCA 1965)