NEIL LEAVITT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ARTHUR G. GEORGALIS, APPELLANT,
v.
ALAN GARSON, APPELLEE

Fla. 4th DCA | 1988-07-13
Nos. 87-2666, 87-2791
LETTS and GLICKSTEIN, JJ., concur.
528 So. 2d 108 Florida District Court of Appeal, Fourth District (1988) Positive Treatment
Cited by 6 cases

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.


Holding

The trial court erred in granting summary judgment because a factual dispute existed regarding payment, and it abused its discretion in denying the motion to amend the answer to include the Statute of Frauds defense.


Headnotes

[1] A factual dispute regarding payment for stock precludes summary judgment when one party asserts payment and the other asserts non-payment.

[2] Leave to amend pleadings should not be denied unless the privilege has been abused or the pleading is clearly not amendable, with prejudice to the opposing party being th…

Previewing 2 of 5 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

Facts & Procedural History

Appellee sued for breach of contract, alleging decedent agreed to transfer stock for over $5,000, which appellee paid but never received. Appellant de…

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.


Opinion of the Court
HERSEY, Chief Judge.

HERSEY, Chief Judge.

Appellant, Neil Leavitt, as personal representative of the estate of Arthur Geor-galis, defendant below, appeals the trial court’s order denying his motion to amend his answer, its final summary judgment in favor of appellee, and its amended final judgment awarding appellee $9,594. We reverse.

On April 28, 1987, appellee filed a complaint alleging that he and the decedent had entered into a contract on June 7,1984, whereby the decedent agreed to transfer to appellee 100,000 shares of stock of AGA (Amateur Golfers’ Association) of America, Inc., for a sum in excess of $5,000. The complaint alleged that appellee had paid a sum in excess of $5,000 to the decedent but that the decedent had failed and refused to transfer the stock certificates.

Attached to the complaint was a copy of a letter purportedly signed by the decedent which appellee alleged memorialized the transaction. The letter stated: “This letter will verify the fact that Dr. Alan Garson owns 100,000 (one hundred thousand) shares of my stock in AGA of America, Inc. This stock cannot be negotiated for at least two years after the public issue.”

Appellee asked for damages for breach of contract, fraud, and for specific performance.

Appellant filed an answer denying all allegations in the complaint and asserting inter alia as affirmative defenses that the plaintiff had failed to recite any consideration for the stock and that there had been no contract between the parties.

On August 4, 1987, appellee moved for summary judgment. An attached affidavit of appellee stated that he had paid the decedent $7,000 on June 7, 1984, but had never received the stock. Appellant filed a responsive affidavit in which he stated that the stock was virtually worthless at the time of the alleged contract and was presently worth only $750 to $1,500. Appellant’s affidavit also stated that “[njothing contained herein shall be construed as an admission by the Estate that a contract for sale existed, that nay [sic] monies-were received by the decedent or owed by the Estate, To the contrary, the transaction is denied.”

On September 4, 1987, appellant filed a motion to amend his answer to include the affirmative defense of the Statute of Frauds. A hearing was held on September 9, 1987, at which time the court considered appellee’s motion for summary judgment but apparently did not consider appellant’s motion to amend. The court thereafter granted appellee’s motion for summary judgment, and on September 17, 1987, rendered a final judgment for $7,000 plus interest and costs in favor of appellee.

Appellant filed a motion for rehearing, arguing that the court should have granted his motion to amend. The court entered an order on rehearing denying appellant’s motion to amend his answer and thereafter rendered an amended final judgment in favor of appellee for $9,594.

On appeal, appellant contends that the trial court erred in granting summary judgment for appellee and abused its discretion in denying his motion to amend. We agree.

Appellee asserts that it was undisputed that he paid $7,000 as consideration for the stock and contends that appellant’s affidavit does not “unequivocably deny” that the decedent received the money. We conclude, however, that appellant’s affidavit is sufficient to constitute a denial of receipt of the funds. Also, appellant’s answer specifically denied all allegations of the complaint, number three of which was the allegation that appellee had paid in excess of $5,000 for the stock.

Based on the pleadings and the affidavits, the trial court was faced with appel-lee’s bare assertion that he paid $7,000 and appellant’s bare assertion that he did not. Accordingly, a factual dispute existed which precluded summary judgment. See Stewart v. Boho, Inc., 493 So. 2d 95 (Fla. 4th DCA 1986).

As for appellant’s motion to amend his answer, rule 1.190, Florida Rules of Civil Procedure, provides for liberal amendment of pleadings. Under the rule, a test of prejudice is the primary consideration in determining whether a motion for leave to amend should be granted, and leave to amend should not be denied unless the privilege has been abused or the pleading is clearly not amendable. New River Yachting Center v. Bacchiocchi, 407 So. 2d 607, 609 (Fla. 4th DCA 1981), rev. denied, 415 So. 2d 1360 (Fla.1982).

Section 678.319, Florida Statutes (1985), provides:

A contract for the sale of securities is not enforceable by way of action or defense unless:
(1) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or (2) Delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or (3) Within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under subsection (1) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within 10 days after its receipt; or (4) The party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.

Appellee contends that since he paid $7,000 as consideration for the stock, section 678.319 would not have been a valid defense to his claim. What appellee fails to note, however, is that if a trier of fact were to determine that appellee did not pay the $7,000, then section 678.319 would be a valid defense.

Appellant correctly contends that his motion to amend was made prior to the hearing on the motion for summary judgment and before the case had been set for trial, so appellee would not have been prejudiced had the motion been granted.

Based on the foregoing, we reverse and remand for further proceedings.

REVERSE AND REMAND.

LETTS and GLICKSTEIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Collier v. Bolling Brooks, 632 So. 2d 149 (Fla. 1st DCA 1994)
    …days after its receipt; or (4) The party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract was made for the sale of a stated quantity of described securities at a defined or stated price. . 528 So. 2d 108 (Fla. 4th DCA 1988). In that case, the court reversed a summary judgment for the appellee because it found that there was a factual dispute regarding whether the appellee had paid the appellant’s decedent $7000 for 100,-000 shares of stock in AGA of…
  • Dimick v. RAY, 774 So. 2d 830 (Fla. 4th DCA 2000)
    …amend should not be denied unless the privilege has been abused or the pleading is clearly not amendable. New River Yachting Center v. Bacchiocchi, 407 So. 2d 607, 609 (Fla. 4th DCA 1981), rev. denied, 415 So. 2d 1360 (Fla.1982). Leavitt v. Carson, 528 So. 2d 108, 110 (Fla. 4th DCA 1988). Amendments should be liberally granted, particularly when the motion is made prior to the hearing on a motion for summary judgment. See Soucy v. Casper, 658 So. 2d 1017, 1018 (Fla. 4th DCA 1995)(citing Smith v. Barrett, 564…
  • Soucy v. Casper, 658 So. 2d 1017 (Fla. 4th DCA 1995)
    …dure 1.190(a) states that a motion for leave to amend should be liberally granted, particularly when the motion is made prior to the hearing on the motion for summary judgment. Smith v. Barrett, 564 So. 2d 582 (Fla. 4th DCA 1990); Leavitt v. Garson, 528 So. 2d 108 (Fla. 4th DCA 1988). Leave to amend should only be denied when the privilege has been abused or the amendment would be futile to state a cause of action. Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993); Kairalla v. John D. and Cath…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw