EDW. EVERETT RICE, APPELLANT,
v.
CORNELIUS FREMOW, APPELLEE
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Rice purchased rental property from Fremow with a purchase money mortgage but later sued alleging fraud in the sale. The trial court dismissed Rice's fraud complaint, granted Fremow's cross-complaint for declaratory relief upholding the note and mortgage, and entered a declaratory decree. Rice appealed, challenging the dismissal and the decree.
The trial court properly dismissed the fraud complaint because Rice failed to allege the amount of rental income, failed to show his right to rely on defendant's representations, and failed to state facts regarding his diligence in investigating the property. The affidavit of bias and prejudice did not meet statutory requirements and was properly denied. The declaratory decree was an appropriate remedy to resolve doubt about the validity of the note and mortgage.
“There was no allegation as to the amount of the rental income, no showing as to the right of the plaintiff to rely on the statements of the defendant or his agent, and no facts stated as to the diligence on the plaintiff's part in investigating or failing to investigate such facts or how he was prevented from investigating the past income and the status of the property.”
Explains why the fraud complaint was properly dismissed for failing to state essential elements of the claim.
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Join FLexlaw to unlock all legal intelligenceRice purchased rental property from Fremow for $25,000, paying $10,000 cash and executing a note and purchase money mortgage for $15,000. An additiona…
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This matter is before the court on appeal from a declaratory decree upholding the validity of the note and mortgage of the defendant and denying request for damages by the plaintiff.
It appears that the plaintiff purchased certain rental property in Sarasota from the defendant in consideration of the sum of $25,000, paying $10,000 cash and executing a note and purchase money mortgage for $15,000 for the balance due. An additional $10,000 was paid on account at the time of the institution of the litigation, leaving a balance due on the mortgage of $5,000.
The plaintiff filed suit and lis pendens alleging fraud and claiming damages sufficient to offset the balance due on the purchase price.
The court granted defendant’s motion to dismiss the complaint and allowed the plaintiff 30 days to amend. The plaintiff elected not to amend. The defendant filed a cross-complaint for declaratory decree to determine the rights of the parties. Plaintiff’s motion to dismiss the cross-complaint was denied. The motion to dismiss the cause without prejudice was denied. The plaintiff filed an answer to the cross-complaint which was stricken, and the matter went to trial on the cross-complaint and amended answer.
The plaintiff did not appear at the trial after his request for postponement had been denied on the grounds that he was ill.
Just prior to the trial, the plaintiff filed an affidavit of bias and prejudice.
The complaint alleged that the defendant or his agent misrepresented the value of the property, misrepresented the amount of the annual income, and the general state of repairs of the property. He further stated that the defendant misrepresented the status of certain adjacent property, and the fact that the tenants were year to year occupants of the property. There was no allegation as to the amount of the rental income, no showing as to the right of the plaintiff to rely on the statements of the defendant or his agent, and no facts stated as to the diligence on the plaintiff’s part in investigating or failing to investigate such facts or how he was prevented from investigating the past income and the status of the property. Potakar v. Hurtak, Fla.1955, 82 So.2d 502. It would, therefore, appear that the trial court was correct in dismissing the complaint.
The court could properly deny plaintiff’s motion to dismiss without prejudice after the filing of a cross-complaint by the defendant. Florida Rules of Civil Procedure, Rule 1.35(a) (2), 30 F.S.A.
The affidavit of bias and prejudice does not meet the essential requirements set forth in F.S.A. § 38.10 and, therefore, the trial court properly denied the request that the cause be transferred to another trial judge.
The next question for consideration is the availability of the declaratory decree provision of F.S.A. chapter 87, to grant declaratory relief under the circumstances set forth in this case. It appears that a doubt had been raised as to the validity of the defendant’s note and mortgage and that, therefore, the issues raised constituted a proper matter for determination by declaratory decree.
For the reason hereinabove set forth, the decree is affirmed.
Affirmed.
ALLEN, Acting C. J., and WHITE, J, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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MacIejewski v. William M. Holland, Jr., P.A., 441 So. 2d 703 (Fla. 2d DCA 1983)…as alleged in her complaint doubts as to the validity of the note and mortgage, and this court has held that the determination of the validity of a note and mortgage is a proper matter to be considered in a declaratory decree action. Rice v. Fremow, 165 So. 2d 447 (Fla. 2d DCA 1964); see also § 86.021, Fla.Stat. (1981). We accordingly reverse and remand for proceedings consistent herewith. , BOARDMAN, A.C.J., and GRIMES, J., concur.…
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Conley v. Morley Realty Corp., 575 So. 2d 253 (Fla. 3d DCA 1991)…ability of the liquidated damages clause, a matter which is appropriate for declaratory judgment. See Appel v. Scott, 479 So. 2d 800, 803 (Fla.2d DCA 1985) (enforceability of rental increases proper subject for declaratory judgment); Rice v. Fremow, 165 So. 2d 447 (Fla.2d DCA) (doubt raised to validity of note and mortgage), cert. denied, 170 So. 2d 588 (Fla.1964); Platt v. General Development Corp., 122 So. 2d 48, 51 (Fla.2d DCA 1960) (“plaintiffs might well have been in doubt as to their rights under the co…
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Hollywood Shopping Plaza, Inc. v. Schuyler, 179 So. 2d 573 (Fla. 2d DCA 1965)…r Declaratory Summary Decree. The subject matter of this cause can properly be considered on complaint for declaratory decree as provided by Chapter 87, F.S.A., in that there was a bona fide dispute between the parties. Rice v. Fremow, Fla.App.1964, 165 So. 2d 447. The provisions of the Assignment of Lease by which Normdick, Inc. No. 3 assumed the obligation of the assignor Wise Shops, Inc., clearly placed the assignee in the same position as if it had executed the original lease as the original tenant. The…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Potakar v. Hurtak, 82 So. 2d 502 (Fla. 1955)