VINCENZO ARMETTA ET AL., INTERVENORS, GROUP I, APPELLANTS,
v.
CLEVETRUST REALTY INVESTORS ET AL., APPELLEES
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The court held that a counterclaim seeking an equitable lien based on equitable estoppel must allege fraud, misrepresentation, or other affirmative deception to state a cause of action.
Appellants, contract purchasers of condominium units, sought an equitable lien with priority over the appellee construction lender's mortgage. They cl…
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DOWNEY, Judge.
This is a plenary appeal from a final judgment dismissing Count XVI of appellants’ counterclaim with prejudice. We have previously considered other counts of the same counterclaim and affirmed the trial court’s action in dismissing them. See: Armetta v. Clevetrust Realty Investors, 359 So. 2d 540 (Fla. 4th DCA 1978), cert. denied 366 So. 2d 879 (Fla.1978).
Appellee, as the construction lender, is the plaintiff in the trial court seeking to foreclose its mortgage on a proposed, albeit incomplete, condominium complex. Appellants are intervenors who as contract purchasers paid approximately $1,500,000 in deposits toward the purchase of condominium units.
Count XVI of appellants’ counterclaim sought the imposition of an equitable lien on the property in question and a determination that this lien had priority over appel-lee’s mortgage. The thrust of appellants’ claim in Count XVI is that appellee’s mortgage lien should be held inferior to appellants’ claims because of general considerations of right and justice; that the application of the doctrine of equitable estoppel to the circumstance of this case would entitle appellants to an equitable lien prior in dignity to appellee’s mortgage.
We believe this case is controlled by Rinker Materials Corp. v. Palmer First National Bank & Trust Co. of Sarasota, 361 So. 2d 156 (Fla.1978), which requires that in order to state a cause of action for an equitable lien on the theory of equitable estoppel it is necessary to allege “fraud, misrepresentation, or other affirmative deception.” The allegations of Count XVI do not rise to that level.
Accordingly, the judgment appealed from is affirmed.
AFFIRMED.
LETTS, C. J., and HURLEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gould v. Nat'l Bank OF Fla., 421 So. 2d 798 (Fla. 3d DCA 1982)…her affirmative deception. See Rinker Materials Corp. v. The Palmer First National Bank and Trust Company of Sarasota, 361 So. 2d 156 (Fla.1978); Hagen v. Florida Drug, Inc., 402 So. 2d 57 (Fla. 4th DCA 1981); Armetta v. Clevetrust Realty Investors, 384 So. 2d 55 (Fla. 4th DCA 1980). Obviously then the jury could have found the Bank estopped to collect on the promissory note because of a misrepresentation or other affirmative deception without fraud, which verdict would be quite consistent with the verdict o…
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Golden v. Davey L. Woodward, Jr., 15 So. 3d 664 (Fla. 1st DCA 2009)…urt of Florida held that “a party may successfully maintain a suit under the theory of equitable estoppel only where there is proof of fraud, misrepresentation, or other affirmative deception.” Id. at 159; see also Armetta v. Clevetrust Realty Inv., 384 So. 2d 55, 56 (Fla. 4th DCA 1980). Appellants argue that because the trial court found no basis for the allegations of fraud or misconduct by Appellants, no legal basis was proven for an equitable lien. The deficiency in this argument is that Count Two did n…
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Hagen v. Fla. Drug, Inc., 402 So. 2d 57 (Fla. 4th DCA 1981)…fraud, misrepresentation or other affirmative deception, the trial court was correct in dismissing this count. See Rinker Materials Corp. v. Palmer First National Bank and Trust Co., 361 So. 2d 156 (Fla.1978); Armetta v. Clevetrust Realty Investors, 384 So. 2d 55 (Fla. 4th DCA 1980). Accordingly, the dismissal of counts one and two is reversed; the dismissal of count three is affirmed. LETTS, C. J., and DOWNEY, J., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rinker Materials Corp. v. The Palmer First Nat'l Bank & Tr. Co. OF Sarasota, 361 So. 2d 156 (Fla. 1978)
- Weissman v. RAY, 359 So. 2d 540 (Fla. 3d DCA 1978)