JOHN B. TOMAYKO, PETITIONER,
v.
MARTHA J. THOMAS, A/K/A M. JANICE THOMAS, RESPONDENT
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The Florida Supreme Court discharged a writ of certiorari in a property dispute involving the characterization of funds as a gift versus a resulting trust. The court determined that the district court's decision did not conflict with established summary judgment principles requiring acceptance of affidavits as true, and therefore lacked the direct conflict necessary for jurisdiction.
The court held that the district court's decision did not conflict with the principle that affidavits of a defending party must be accepted as true. A donee's statement regarding a gift, even if accepted as true, may be insufficient standing alone to raise a genuine issue of material fact regarding a gift under the specific circumstances presented.
“affidavits of a [defending party] must be accepted as true”
Establishes the controlling principle for summary judgment that the court found was not violated by the district court's decision.
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Join FLexlaw to unlock all legal intelligenceTomayko received certain sale proceeds and claimed they were a gift from Thomas. The district court found the facts largely undisputed but concluded t…
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The opinion of the district court in this case 1 states that “the facts are largely undisputed” and concludes that there existed no genuine issue of- material fact relative to the defendant’s assertion of gift of certain sale proceeds because:
“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.”
The pertinent conflict alleged by the petition for writ of certiorari in this Court is with five decisions prescribing general summary judgment rules, such as Chapman v. Tison, Fla.App.1962, 137 So.2d 603, holding “affidavits of a [defending party] must be accepted as true,” and other cases holding credibility and weight to be improper considerations: Nance v. Ball, Fla.1961, 134 So.2d 35; Williams v. Board of Public Instruction of Flagler County, Fla.1953, 61 So.2d 493; Williams v. City of Lake City, Fla.1953, 62 So.2d 732; Brannen v. State, 1927, 94 Fla. 656, 114 So. 429.
As we understand the decision in this case, however, it does not conflict with these principles but is to the effect that the donee’s statement, even if true, is insufficient standing alone to raise a genuine issue as to a gift in these circumstances. Neither does the principle stated in Bran-nen, supra, collide with the decision here.2 The petitioner makes no reference to any other decision on the actual point involved, i. e. the sufficiency of evidence as a matter of law to establish a gift in these circumstances.
The other cases3 cited as “see” references by the district court involve different facts but stand for the general rules that a resulting trust is presumptively created by vesting of title in one other than the beneficial owner, and that property acquired by a husband as an estate by entirety is presumed a gift of an undivided interest to the wife, which presumption can be overcome only by “conclusive” evidence. The district court reference to these related cases, as material to its conclusion that the presumption of resulting trust here could be overcome only by “strong and convincing” evidence, does not in our opinion amount to attributing to them a principle for which they do not stand.4
*274Because the petition for writ of certiorari reflected apparent jurisdiction in this Court, we issued the writ and have heard argument of the parties. Upon full consideration of the cause, we have determined that the cited decisions 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.
Cases With Similar Vibessemantic neighbors from the corpus
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Harrison v. Am. Fire & Cas. Co., 163 So. 2d 324 (Fla. 2d DCA 1964)…ry judgment or decree is exercised, for such a power wields a dangerous potential which could have the effect of trespass against fundamental and traditional processes for determining the rights of litigants.” See also Tomayko v. Thomas, Fla. 1963, 151 So. 2d 272; Radice v. Morris, Fla.App. 1961, 135 So. 2d 231; Crovella v. Cochrane, Fla.App.1958, 102 So. 2d 307, 310. As noted in Nance v. Ball, Fla.App.1961, 134 So. 2d 35, 37: “Some cases are clearly disposable by summary judgment. There are also marginal c…
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Camps v. Cardenas, 389 So. 2d 320 (Fla. 3d DCA 1980)…money judgment for the appellee on the breach of contract claim for less than $2,500, Emery v. International Glass & Manufacturing, Inc., 249 So. 2d 496 (Fla. 2d DCA 1971); Tomayko v. Thomas, 144 So. 2d 335, 337 (Fla. 3d DCA 1962), cert. discharged, 151 So. 2d 272 (Fla.1963); (2) there was no right under the applicable contracts herein to arbitrate the total controversy in this cause, and, to the extent that a right to arbitrate part of the controversy might have existed, such right was clearly waived by the…
Authorities Cited (11 total)
- Raiford Brannen v. State, 94 Fla. 656 (Fla. 1927)
- Strauss v. Strauss, 148 Fla. 23 (Fla. 1941)
- Williams v. City OF Lake City, 62 So. 2d 732 (Fla. 1953)
- Kollar v. Kollar, 155 Fla. 705 (Fla. 1945)
- Wadlington v. Edwards, 92 So. 2d 629 (Fla. 1957)
- Nance v. Linzy Ball and June Ball, 134 So. 2d 35 (Fla. 2d DCA 1961)
- Walker v. Landress, 111 Fla. 356 (Fla. 1933)
- Tomayko v. Thomas, 143 So. 2d 227 (Fla. 3d DCA 1962)
- Williams v. Bd. of Pub. Instruction, 61 So. 2d 493 (Fla. 1952)
- Ellsworth v. Nash Miami Motors, Inc., 142 So. 2d 733 (Fla. 1962)