THE ULTIMATE CORPORATION, ETC., APPELLANTS,
v.
CG DATA CORPORATION, ETC., ET AL., APPELLEES; CG DATA CORPORATION, ETC., ET AL., APPELLANTS, V. THE ULTIMATE CORPORATION, ETC., APPELLEES
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Ultimate Corporation and CG Data Corporation appealed a trial court's dismissal of fraud and conspiracy counts and entry of summary judgment on a promissory note. The appellate court affirmed the summary judgment on the promissory note but reversed the dismissal of the fraud and conspiracy counts, finding the amended complaint contained sufficient allegations to permit further amendment.
The court held that: (1) documentary stamps need not be paid on a promissory note brought to Florida solely for collection since it was not made or executed in the state; (2) the deficiency in notice was harmless error because defendants waived objection by filing timely opposing affidavits with no demonstrable prejudice; and (3) the amended complaint contained sufficient allegations permitting further amendment of the fraud and conspiracy claims.
[1] A promissory note brought into Florida solely for collection is not subject to Florida documentary stamp tax.
[2] A party waives objections to the timeliness of service of a motion for summary judgment by filing affidavits in opposition to the motion.
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Join FLexlaw to unlock all legal intelligence“the promissory note did not require documentary stamps be paid upon it before recovery could be had on the note since the note was brought to Florida solely for collection”
Establishes that documentary stamp tax does not apply to notes brought to Florida merely for collection purposes
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Join FLexlaw to unlock all legal intelligenceThe case involved a promissory note that was brought to Florida solely for collection. Defendants challenged both the summary judgment on the note and…
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PER CURIAM.
Based on the following analysis, we reverse the trial court’s dismissal with prejudice of the fraud and conspiracy counts. We affirm the summary judgment appealed which held the defendants liable under a promissory note.
As to defendants’ arguments contesting the entry of summary judgment, we find only two points raised merit discussion. First, the promissory note did not require documentary stamps be paid upon it before recovery could be had on the note since the note was brought to Florida solely for collection. See 1980 Op.Att’y Gen. Fla. 080-79 (Sept. 24, 1980) (where a promissory note was not “made, executed, delivered, sold, transferred, or assigned in the state” as required by section 201.08, Florida Statutes (1979), the documentary stamp tax cannot be imposed). See also Rainey v. Department of Revenue, 354 So. 2d 387 (Fla. 1st DCA 1977) (where an otherwise taxable transaction is not completed in its essential elements in Florida, the resulting promissory note is not subject to documentary tax), cert. denied, 360 So. 2d 1248 (Fla.1978).
Second, we reject defendants’ claim that the summary judgment is reversible because the motion seeking that judgment was served by mail twenty-one days before the hearing on the motion when the Florida Rules of Civil Procedure require that there be twenty-five days’ notice. Fla.R.Civ.P. 1.510(c) and 1.090(e). The defendants waived any objection to the timeliness of the service by timely filing affidavits opposing the summary judgment motion. See Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA), cert. denied, 240 So. 2d 645 (Fla.1970); Bernard Marko & Assoc., Inc. v. Steele, 230 So. 2d 42 (Fla. 3d DCA 1970). It is thus evident that the timeliness of notice was adequate and the rule served its purpose; accordingly, any error in this regard was harmless since the defendants can point to no demonstrable prejudice.
Finally, we reverse the trial court’s dismissal of the fraud and conspiracy counts without leave to amend. The present amended complaint makes sufficient allegations to demonstrate that the plaintiff can further amend the complaint to adequately state actionable claims without prejudice to the defendants. See Osborne v. Delta Maintenance and Welding, Inc., 365 So. 2d 425 (Fla. 2d DCA 1978); Enstrom v. Dixon, 354 So. 2d 1251 (Fla. 4th DCA 1978); Wackenhut Protective Sys. v. Key Biscayne Commodore Club Condominium I, Inc., 350 So. 2d 1150 (Fla. 3d DCA 1977).
Affirmed in part, reversed in part and remanded.
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Bertie M. Brewer v. Clerk OF the Cir. Court, 720 So. 2d 602 (Fla. 1st DCA 1998)…summary judgment). Moreover, the parties clearly waived any procedural defects with regard to notice of the summary judgment hearing. See, e.g., Wong v. Crown Equip. Corp., 676 So. 2d 981, 981-82 (Fla. 3d DCA 1996); Ultimate Corp. v. CG Data Corp., 575 So. 2d 1338, 1339 (Fla. 3d DCA 1991); Bartlett Constr., Inc. v. Coastal Plains, Inc., 353 So. 2d 892, 893 (Fla. 3d DCA 1977). In particular, in the 33 pages of transcript from the hearing, appellant’s attorney actively argued her position that she had properly…
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Wong v. Crown Equip. Corp. & Life Sys., Inc., 676 So. 2d 981 (Fla. 3d DCA 1996)…ich time he belatedly filed a motion for rehearing and claimed surprise. Under these circumstances, we conclude that the plaintiff has waived any procedural irregularity in the motion for summary judgment. See, e.g., Ultimate Corp. v. CG Data Corp., 575 So. 2d 1338 (Fla. 3d DCA 1991); Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905 (Fla. 3d DCA 1988); Samuels v. Magnum Realty Corp., 431 So. 2d 241 (Fla. 1st DCA 1983); Burns v. Consolidated Am. Ins. Co., 359 So. 2d 1203, 1206 (Fla. 3d DCA 1978); Fuller v. Gen…
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Vivona v. Colony Point 5 Condo. Ass'n, Inc., 706 So. 2d 391 (Fla. 4th DCA 1998)…ond to the motion, and they filed affidavits and a memorandum in response to the motion without contesting the procedure. Thus, they waived any objection that they may have had with respect to the lack of notice. See Ultimate Corp. v. CG Data Corp., 575 So. 2d 1338, 1339 (Fla. 3d DCA 1991). On the substantive issues, we hold that the impact rule precludes Mrs.. Vivona’s recovery of damages for emotional distress because she failed to offer any evidence of any physical impact to her. See R.J. v. Humana of Flo…
Authorities Cited
- Bernard Marko & Assocs., Inc. v. Morton Steele and Lester Segerman, 230 So. 2d 42 (Fla. 3d DCA 1970)
- Osborne v. DELTA Maint. & Welding, Inc., 365 So. 2d 425 (Fla. 2d DCA 1978)
- Wackenhut Protective Sys., Inc. v. KEY Biscayne Commodore Club Condo. I, Inc., 350 So. 2d 1150 (Fla. 3d DCA 1977)
- Trazysie Enstrom v. Liisa A. Dixon, 354 So. 2d 1251 (Fla. 4th DCA 1978)
- Booker T. Washington Barker v. State, 238 So. 2d 308 (Fla. 2d DCA 1970)
- Stafford Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970)
- Jaye-Ron Corp. v. Pozin, 240 So. 2d 645 (Fla. 1970)
- Macio Bernard Simpson v. State, 240 So. 2d 645 (Fla. 1970)
- Rainey v. Dep't OF Revenue, 354 So. 2d 387 (Fla. 1st DCA 1977)