CABO RICO YACHTS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
GUY MARTINACHE, FRASER SMITH, AND EDITH SMITH, APPELLEES
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The court affirmed summary judgment on breach of contract but reversed summary judgment on fraud because the plaintiff's motion did not request it and presented no evidence of fraudulent intent.
Summary judgment on breach of contract is proper where a boat builder fails to return a deposit for an undelivered boat, but summary judgment on fraud is improper when the motion does not request it and no evidence of fraudulent intent is presented.
[1] Summary judgment on a claim not raised with particularity in the motion and unsupported by evidence is reversible error, particularly in fraud cases where intent to perfo…
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Join FLexlaw to unlock all legal intelligence“it is reversible error to enter summary judgment on a ground not raised with particularity in the motion”
Court citing Williams v. Bank of America Corp. regarding procedural requirements for summary judgment motions
Martinache paid a deposit to Cabo Rico Yachts for construction of a boat that was never delivered, and the company failed to return the deposit.…
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Plaintiff, Guy Martinache, sued defendant, Cabo Rico Yachts, Inc., after it failed to return a deposit plaintiff paid for construction of a boat that was never delivered to plaintiff. Defendant appeals the trial court’s entry of summary judgment in favor of plaintiff on plaintiffs breach of contract and fraud claims. We affirm summary judgment on the breach of contract claim. However, we reverse summary judgment on the fraud claim, as plaintiffs motion for summary judgment did not request summary judgment on that count and plaintiff did not submit any evidence of fraud. See Williams v. Bank of America Corp., 927 So.2d 1091 (Fla. 4th DCA 2006) (holding that it is reversible error to enter summary judgment on a ground not raised with particularity in the motion); Sheridan Healthcorp, Inc. v. Amko, 993 So.2d 167 (Fla. 4th DCA 2008) (reversing summary judgment where mov-ant did not submit evidence, stating that “[i]n summary judgment proceedings, the burden is not on the opponent to submit evidence until the movant tenders competent evidence in support of the motion.”). Here, the record fails to establish that defendant acted fraudulently when he took the deposit. See Wadlington v. Cont’l Med. Servs., Inc., 907 So.2d 631, 632-33 (Fla. 4th DCA 2005) (noting that in fraud cases the issue of whether a defendant had the intention to perform an act at the time the promise was made is generally a jury question).
Affirmed in part, Reversed in pari and Remanded.
GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. Bank OF Am. Corp., 927 So. 2d 1091 (Fla. 4th DCA 2006)
- Lindi Diana Wadlington v. Cont'l Med. Servs., Inc., 907 So. 2d 631 (Fla. 4th DCA 2005)
- Sheridan Healthcorp, Inc. v. Carl C. Amko, M.D., 993 So. 2d 167 (Fla. 4th DCA 2008)