TOOLTREND, INC. D/B/A CMT TOOLS, APPELLANT,
v.
C.M.T. UTENSILI, S.R.L., APPELLEE
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The court held that a trial court should stay execution of a summary judgment for a plaintiff when a counterclaim remains pending, or reduce the execution by the amount of the counterclaim.
[1] A trial court may grant summary judgment for a plaintiff while a counterclaim remains pending, but must stay execution of the judgment pending resolution of the countercl…
[2] A trial court must stay execution of a summary judgment for a plaintiff by the full amount of damages sought in a pending counterclaim, if those damages exceed the amount…
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Join FLexlaw to unlock all legal intelligenceTooltrend appealed the dismissal of its counterclaim and summary judgment entered against it on C.M.T.'s complaint. The trial court granted partial su…
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WHATLEY, Judge.
Tooltrend, Inc., d/b/a C.M.T. Tools, appeals the dismissal with prejudice of counts one and two of its counterclaim and the entry of summary judgment on C.M.T. Utensili’s complaint. We affirm the dismissal of counts one and two of Tooltrend’s counterclaim without discussion. We also affirm the order granting summary judgment in favor of C.M.T.; however, we remand for the trial court to modify the execution of the summary judgment.
Tooltrend argues that it was improper to enter summary judgment in favor of C.M.T. while its counterclaim was pending. The trial court granted a partial summary judgment in favor of C.M.T. for damages in the amount of $297,014.08, plus prejudgment interest in the amount of $35,595.98. The court then stayed execution on the judgment, but only to the extent of $57,600, to cover possible damages awarded to Tooltrend in the counterclaim. The court reserved jurisdiction over that amount pending the resolution of the counterclaim. Tooltrend argues that this was improper because its counterclaim requested damages exceeding $57,600. We agree.
Courts have repeatedly held that, where summary judgment is granted for a plaintiff and a counterclaim remains pending, the trial court should stay the execution of the judgment pending the resolution of the counterclaim. See Howell v. Miller, 638 So. 2d 544 (Fla. 2d DCA 1994); Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988); Zanathy v. Beach Harbor Club Ass’n, 343 So. 2d 625 (Fla. 2d DCA 1977). In this case, there was testimony that the counterclaim was seeking damages for at least $80,000 to $100,000.
Accordingly, we remand this case to the trial court to either stay the execution of the judgment or take evidence regarding the amount of damages sought in the third count of the counterclaim and reduce the execution of the judgment by that amount. We note there may be an outstanding federal judgment that the trial court may consider on remand.
Affirmed in part and remanded.
ALTENBERND, A.C.J., and QUINCE, J., concur.
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Peterson v. Affordable Homes OF Palm Beach, Inc., 65 So. 3d 112 (Fla. 4th DCA 2011)…atedly held that, where summary judgment is granted for a plaintiff and a counterclaim remains pending, the trial court should stay the execution of the judgment pending the resolution of the counterclaim.” Tooltrend, Inc. v. C.M.T. Utensili, S.r.l, 707 So. 2d 1162, 1162 (Fla. 2d DCA 1998). “[T]he issue of fraud, raised by appellants as a defense and counterclaim, is usually considered a jury question and is not ordinarily appropriate for summary judgment proceedings.” L & S Food Servs., Inc. v. Roberts Cafete…
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Millennium Grp. I v. Attorneys Title Ins. Fund, Inc., 847 So. 2d 1115 (Fla. 1st DCA 2003)…s granted for one party and a counterclaim (or in this case the original claim) remains pending, the trial court should stay the execution of the judgment pending the resolution of the remaining claim. See Tooltrend, Inc. v. C.M.T. Utensili, S.r.l., 707 So. 2d 1162 (Fla. 2d DCA 1998); Howell v. Miller, 638 So. 2d 544 (Fla. 2d DCA 1994); Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988); Zanathy v. Beach Harbor Club Ass’n, Inc., 343 So. 2d 625 (Fla. 2d DCA 1977). Here, the trial court erred in…
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Denniz Dilican and Lori Dilican v. Normandy Vill. Prop. Owners Ass'n, Inc., 122 So. 3d 897 (Fla. 4th DCA 2013)…g that “where summary judgment is granted for a plaintiff and a counterclaim remains pending, the trial court should stay the execution of the judgment pending the resolution of the counterclaim.”) (quoting Tooltrend, Inc. v. C.M.T. Utensili, S.r.L, 707 So. 2d 1162, 1162 (Fla. 2d DCA 1998)). Although all but one of the counterclaim counts were dismissed, one count (claiming negligence) remains. Thus, final summary judgment of foreclosure should not have been ordered before the trial court considered this one r…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988)
- Zanathy v. Beach Harbor Club Ass'n, Inc., 343 So. 2d 625 (Fla. 2d DCA 1977)
- Howell v. Miller, 638 So. 2d 544 (Fla. 2d DCA 1994)