ROBERT M. CADY AND CLARA P. PULKOWNIK, APPELLANTS,
v.
CHEVY CHASE SAVINGS AND LOAN, INC., A MARYLAND CORPORATION, APPELLEE

Fla. 4th DCA | 1988-07-20
No. 87-0669
HERSEY, C.J., and WALDEN, J., concur.
528 So. 2d 136 Florida District Court of Appeal, Fourth District (1988) Positive Treatment
Cited by 12 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.

Synopsis

Appellants purchased three condominium units financed by a mortgage that was subsequently assigned to Chevy Chase Savings and Loan, which filed for foreclosure. The trial court granted summary judgment in favor of Chevy Chase, finding that appellants' affirmative defenses failed as a matter of law because they were conclusory and lacked sufficient allegations of ultimate fact.


Holding

The court affirmed the summary judgment, holding that appellants' affirmative defenses were legally insufficient as a matter of law because they were conclusory in nature and lacked allegations of ultimate fact. The court further found no reversible error in the denial of leave to amend pleadings, as the denial was without prejudice and appellants never subsequently requested leave to amend in their petition for rehearing.


Headnotes

[1] A pleading asserting affirmative defenses must contain allegations of ultimate fact, not mere conclusions of law, to be legally sufficient.

[2] Allegations of fraud must be pled with particularity to constitute a valid defense.

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Key Quotes

“A careful analysis of each of the affirmative defenses reflects that they are, on the whole, conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good defense to the complaint.”

Establishes the court's primary rationale for finding the affirmative defenses legally insufficient as a matter of law.

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Facts & Procedural History

In May 1984, appellants Robert M. Cady and Clara P. Pulkownik purchased three condominium units at Galt Ocean Club Development marketed as part of a h…

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Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

Appellants, Robert M. Cady and Clara P. Pulkownik, appeal from a final summary judgment of foreclosure.

It appears that in May, 1984, appellants purchased three condominium units at Galt Ocean Club Development, Inc. These condominium units were marketed and sold as part of a hotel management program that was intended to generate a profit and a significant return.

The purchase of these units was financed by B.F. Saul Mortgage Company and these loans were subsequently assigned to appel-lee, Chevy Chase Savings and Loan, Inc. (Chevy Chase).

On April 14, 1986, Chevy Chase filed a complaint to foreclose the mortgages on these condominium units, to which appellants filed an answer and affirmative defenses. In due course, Chevy Chase filed motions for judgment on the pleadings and for summary judgment. Thereafter, appellants filed a Motion To Amend Pleading, wherein they sought leave to file a counterclaim, a third party claim, and a cross-claim. After a hearing on appellee’s motion for summary judgment, at which the court indicated it intended to grant the motion for summary judgment, the parties stipulated to an agreed order wherein the court denied appellants’ Motion to Amend Pleadings without prejudice to refile such a motion at a later date. Thereafter, the court entered a final summary judgment in favor of Chevy Chase, specifically holding that appellants’ affirmative defenses failed as a matter of law to state defenses to the complaint.

Appellants’ contentions on appeal are that the trial court erred in 1) not allowing appellants leave to amend their affirmative defenses, 2) granting summary judgment when Chevy Chase failed to disprove appellants’ affirmative defenses, 3) not allowing appellants leave to file a counterclaim, and 4) not allowing appellants adequate time for discovery prior to consideration of the motion for summary judgment.

In our opinion no reversible error has been demonstrated by the various arguments submitted by appellants.

The record reflects that the denial of appellants’ motion to Amend Pleadings was agreed to without prejudice to subsequently move again for leave to file such amended pleadings.

Furthermore, appellants never requested leave to amend their affirmative defenses even in their petition for rehearing directed to the order granting summary judgment. We certainly cannot find the trial court in error in not taking action not requested of him. That leaves only the question of whether the court was correct in determining that the affirmative defenses were insufficient as a matter of law. A careful analysis of each of the affirmative defenses reflects that they are, on the whole, conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good defense to the complaint. The allegations of fraud are not pled with particularity as is required. See Gordon v. Etue, Wardlaw & Co., P.A., 511 So. 2d 384 (Fla. 1st DCA 1987); Reina v. Gingerale Corp., 472 So. 2d 530 (Fla. 3d DCA 1985).

The negligence allegations are bare conclusions failing to set forth the act or omission causing the damage complained of. Rishel v. Eastern Airlines, Inc., 466 So. 2d 1136 (Fla. 3d DCA 1985).

The allegation that the loan was illegal is eonclusory and, without allegations of ultimate fact showing the illegality, does not constitute a sufficient defense.

Finally, allegations that certain representations made were false without designating which ones were false and who made them simply does not constitute an acceptable pleading of a defense based upon false misrepresentation. Certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982); 40 Fla.Jur.2d Pleadings §§ 28, 33 (1982).

Accordingly, we affirm the final summary judgment appealed from.

AFFIRMED.

HERSEY, C.J., and WALDEN, J., concur.


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Citator

Cited By (12 total)

  • Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)
    …ted with such particularity as the circumstances may permit.” This means that a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions. See Cady v. Chevy Chase Sav. and Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988); Reina v. Gingerale Corp., 472 So. 2d 530, 531-32 (Fla. 3d DCA 1985). To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud. Shienvold v. Habie, 627 So. 2d 1203, 1205 (Fla. 4th DCA 1…
  • Gafoor Jaffer and Nina Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199 (Fla. 4th DCA 2015)
    …not objectionable if they are supported by sufficient allegations of ultimate facts.’ ” Steigman v. Danese, 502 So. 2d 463, 465 (Fla. 1st DCA 1987) (quoting Trawick, Fla. Prac. and Proc. § 6-6 (1985)); see also Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988) (“Certainty is required when pleading ..., and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.”) (citations omitted). The vague, ambiguous, and conclusory statement that Chase…
  • Thompson v. The Bank OF NEW York, 862 So. 2d 768 (Fla. 4th DCA 2003)
    …Thompson than to the seller; Thompson had to know his own financial capacity better than a stranger. The trial court was correct that Thompson failed to set forth a defense of fraud. This case is similar to Cady v. Chevy Chase Savings & Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988). In Cady, the borrower attempted to raise fraud as an affirmative defense to a mortgage foreclosure. We held that the borrower had failed to plead fraud “with particularity as is required,” so that it was insufficient as a matter…

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