PENINSULA YACHT CAY DEVELOPMENT, INC., ROBERT SMOLEY AND STEPHEN KATZ, PENINSULA DEVELOPMENT GROUP, APPELLANTS,
v.
SOUTHERN FLORIDABANC SAVINGS ASSOCIATION, APPELLEE
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Summary judgment is appropriate even when fraud is alleged if the moving party tenders competent evidence demonstrating the nonexistence of a genuine issue of material fact, and the opposing party fails to come forward with counter evidence.
[1] Summary judgment may be granted even when fraud is alleged, provided the moving party demonstrates the absence of genuine issues of material fact.
[2] An allegation of fraud does not preclude summary judgment when the moving party tenders competent evidence demonstrating the nonexistence of a genuine issue of material f…
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Join FLexlaw to unlock all legal intelligencePeninsula Yacht alleged fraud based on misrepresentations about Southern Floridabanc Savings' efforts to secure additional financing. Southern submitt…
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PER CURIAM.
Peninsula Yacht argues several inapplicable theories in support of its contention that the trial court erred in granting summary judgment in favor of Southern Flori-dabanc Savings (Southern) on their counterclaim against Peninsula Yacht Cay Development, Inc. (Peninsula). Appellee’s res judicata and law of the case theories are similarly inapplicable. The issue before us is simply whether there are any genuine issues of material fact which preclude sum mary judgment. Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla.1982).
Peninsula contends that because it has alleged fraud as an affirmative defense, the court was precluded from rendering summary judgment, citing Nessim v. DeLoache, 384 So. 2d 1341 (Fla. 3d DCA 1980); Hermes v. Anton, 300 So. 2d 46 (Fla. 3d DCA 1974); Automobile Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So. 2d 386 (Fla. 3d DCA 1972). Nevertheless, there are circumstances which will permit summary judgment even where fraud is alleged. Bryant v. Small, 236 So. 2d 150 (Fla. 3d DCA 1970).
In this case, the fraud count is based on allegations of material misrepresentation concerning the bank’s efforts to secure additional financing for Peninsula. Southern had agreed to use its best efforts to secure additional funding if Peninsula required more funds. In support of its motion for summary judgment, the bank filed an affidavit of its officers stating that it had used its best efforts to aid Peninsula in securing additional financing but that its efforts were unsuccessful. The affidavit was un-controverted.
Because it was undisputed that the bank used its best efforts to obtain additional financing, albeit unsuccessfully, the facts do not support a claim for fraud or misrepresentation. See Landers v. Milton, 370 So. 2d 368 (Fla.1979) (once movant for summary judgment tenders competent evidence demonstrating nonexistence of genuine issue of material fact, opposing party must come forward with counter evidence sufficient to reveal a genuine issue); Fla.R.Civ.P. 1.510.
The summary judgment is affirmed.
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Cole Taylor Bank v. Shannon, 772 So. 2d 546 (Fla. 1st DCA 2000)…v. DeLoache, 384 So. 2d 1341, 1344 (Fla. 3d DCA 1980), summary judgment in a fraud claim is appropriate where the facts relating to one of the essential elements are uncontroverted. See Peninsula Yacht Cay Dev., Inc. v. So. Floridabanc Sav. Assoc., 552 So. 2d 1139, 1140 (Fla. 3d DCA 1989). Under the record before us, the trial court did not err in granting summary judgment in favor of Patricia Shannon on Cole Taylor’s constructive trust claim. Further, we note that there is no allegation in the complaint or…
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John & Elaine Rose & State Farm Ins. Co. v. ADT Sec. Servs., Inc., 989 So. 2d 1244 (Fla. 1st DCA 2008)…rule, summary judgment is not appropriate to resolve a fraud claim under Florida law. “Nevertheless, there are circumstances which will permit summary judgment even where fraud is alleged.” Peninsula Yacht Cay Dev. Inc. v. S. Floridabanc Sav. Ass’n, 552 So. 2d 1139, 1140 (Fla. 3d DCA 1989). The essential elements to establish a claim for fraudulent inducement are: (1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the mak…
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Seltzer v. The Int'l Bank OF Miami, N.A., 561 So. 2d 673 (Fla. 3d DCA 1990)…y judgment finding him liable under a contract of guaranty. We affirm. Summary judgment is proper in the absence of any genuine issues of material fact. See Peninsula Yacht Cay Development, Inc. v. Southern Floridabanc Sav [*674] ings Association, 552 So. 2d 1139 (Fla. 3d DCA 1989). Affirmed.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- Salomon Kassin Nessim v. Mickey DeLOACHE, 384 So. 2d 1341 (Fla. 3d DCA 1980)
- Auto. Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So. 2d 386 (Fla. 3d DCA 1972)
- Hermes v. Anton, 300 So. 2d 46 (Fla. 3d DCA 1974)
- Harper v. State, 236 So. 2d 150 (Fla. 1st DCA 1970)
- Bryant v. Evans Small, 236 So. 2d 150 (Fla. 3d DCA 1970)