JOHN B. TOMAYKO, APPELLANT,
v.
MARTHA J. THOMAS, A/K/A M. JANICE THOMAS, APPELLEE
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Appellant, acting as attorney-in-fact for his son, received proceeds from a real estate sale and placed them in a joint account, then transferred the funds to his own account without his son's knowledge. After the son's death, the son's widow sued seeking a declaration that the funds were held in trust and tracing of the funds. The court held that a resulting trust was presumed and affirmed the summary decree requiring return of the funds.
The court has equity jurisdiction because facts at the commencement of the action were sufficient to confer jurisdiction regardless of subsequent events, and summary judgment was proper because the presumption of resulting trust arising from the facts could only be overcome by strong and convincing evidence, which the defendant's unsupported assertion of gift did not provide.
“The test of equity jurisdiction is whether such facts exist at the time of the commencement of the action as are sufficient to confer jurisdiction on the court. Even where subsequent events render equitable relief unnecessary or improper equity jurisdiction is not defeated.”
Establishes that equity jurisdiction exists at commencement of action and is not defeated by subsequent events, supporting the court's finding of jurisdiction over the trust claim.
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Join FLexlaw to unlock all legal intelligenceJoseph E. Thomas and his wife Martha J. Thomas owned real property and appointed Joseph's father (appellant) as their attorney-in-fact to effect a sal…
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The appellant, defendant below, seeks review of an adverse summary final decree.1 The facts are largely undisputed. Joseph E. Thomas, now deceased, and Martha J. Thomas, his wife, owned certain real property. Being about to leave the country they appointed the appellant, Joseph’s father, their attorney in fact to effect a sale of the property. The appellant placed the proceeds of the sale in a joint savings account in his and his son’s names and so advised his son. Subsequently, without informing his son, he transferred the money to an account in his own name. After the death of the son this action was brought. It sought: (a) a declaration that the proceeds of the sale were held by the appellant in trust, and (b) tracing of the trust funds and the profits derived thereform. The appellant answered denying that the proceeds were held in trust and alleging as an affirmative defense that they were a gift to him from his son. Discovery was had and both parties moved for summary final decree. After hearing, the chancellor entered the final decree appealed declaring the funds to be held in trust by the appellant and ordering their payment to the appellee by a certain date.
The appellant contends the chancellor erred in denying his motion to transfer this cause to the law side. We find this contention to be without merit. The appellant analyzes the complaint as a simple demand for money judgment. After all, he says, what could the appellee hope to *337get but the money? This is not the test of equity jurisdiction. The test of equity jurisdiction is whether such facts exist at the time of the commencement of the action as are sufficient to confer jurisdiction on the court. Even where subsequent events render equitable relief unnecessary or improper equity jurisdiction is not defeated. Carner v. Shapiro, Fla.App.1958, 106 So.2d 87; Mutual Benefit Health and Accident Ass’n v. Ott, 151 Fla. 185, 9 So.2d 383. It is our conclusion that facts existed at the commencement of this action which entitled the appellees to the aid of a court of equity in accordance with the tenor of the demands made in their complaint.
The appellant further contends it was error to enter a summary decree in this action due to the presence of a genuine issue of material fact. He defines the issue: Did the dead son make a gift of the proceeds of the sale to his father? We find this contention also to be without merit. This issue was made by the affirmative defense in the answer. It was supported solely by the bare assertion of the defendant. The facts contained in the record give rise to a presumption of a resulting trust. See Wadlington v. Edwards, Fla. 1957, 92 So.2d 629; Walker v. Landress, 111 Fla. 356, 149 So. 545; Bogert, Trusts & Trustees, § 451. This presumption having arisen could only be overcome by strong and convincing evidence. See Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727; Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356. The unsupported assertion of gift by the person who received the funds was not sufficient to raise a genuine issue of material fact where nothing in the record supported such an assertion. Rule 1.35(c), Florida Rules of Civil Procedure, 30 F.S.A.
We have examined the record in the light of the remaining points presented by the appellant and we hold that no reversible error has been shown.
Affirmed.
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City OF Coral Gables v. Sakolsky, 215 So. 2d 329 (Fla. 3d DCA 1968)…Fla. 304, 123 So. 785. And the same rule applies to equity proceedings. Meredith v. Long, 1928, 96 Fla. 719, 119 So. 114. See also to the same effect, Hasam Realty Corp. v. Dade County, Fla.App.1965, 178 So. 2d 747; Tomayko v. Thomas, Fla.App.1962, 144 So. 2d 335; Mutual Ben. Health & Accident Ass’n. v. Ott, 1942, 151 Fla. 185, 9 So. 2d 383; and Stegemann v. Emery, 1933, 108 Fla. 672, 146 So. 650. In fact, this Court, in the per curiam majority opinion in Davidson v. City of Coral Gables, Fla.App.1960, 119 S…
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Tomayko v. Thomas, 151 So. 2d 272 (Fla. 1963)…present no direct conflict as required by Article V, Sec. 4, Florida Constitution, F.S.A. The writ accordingly must be discharged. It is so ordered. ROBERTS, C. J., and O’CONNELL and CALDWELL, JJ., and COLLINS, Circuit Judge, concur. . Fla.App., 144 So. 2d 335. Also see Fla. App., 143 So. 2d 227 for an earlier appeal by Mrs. Tomayko in a related proceeding. . This was a criminal case where Brannen was convicted of perjury and appealed. The discussion there of the question of whether evidence, even though…
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Jacobs v. The Commercial Bank OF Gainesville, 221 So. 2d 439 (Fla. 1st DCA 1969)…having been read and given full consideration, and the appellants having failed to demonstrate reversible error, the order of the lower court is affirmed. See Harrison v. Consumers Mortgage Company, 154 So. 2d 194 (Fla.App.1963); Tomayko v. Thomas, 144 So. 2d 335 (Fla.App.1962); Jones v. Hartford Accident and Indemnity Co., 109 So. 2d 582 (Fla.App.1959); Johnson v. Studstill, 71 So. 2d 251 (Fla.1954); Moore’s Federal Practice 2nd Ed. Vol. 6, Sec. 56.15 [1-0] pp. 2284. WIGGINTON, C. J., CARROLL, DONALD K., J…
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
- Strauss v. Strauss, 148 Fla. 23 (Fla. 1941)
- Kollar v. Kollar, 155 Fla. 705 (Fla. 1945)
- Wadlington v. Edwards, 92 So. 2d 629 (Fla. 1957)
- Walker v. Landress, 111 Fla. 356 (Fla. 1933)
- Tomayko v. Thomas, 143 So. 2d 227 (Fla. 3d DCA 1962)
- Mut. Benefit Health & Accident Ass'n v. Ott, 151 Fla. 185 (Fla. 1942)
- Carner v. Shapiro, 106 So. 2d 87 (Fla. 2d DCA 1958)