MYRON H. LEWIS, APPELLANT,
v.
LOUIS FLORIO, APPELLEE
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The court held that the movant failed to demonstrate the absence of a genuine issue of material fact, thus the trial court erred in granting summary judgment.
Plaintiff sued for tortious interference with a contract for a real estate brokerage commission. The trial court granted summary judgment for the defe…
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This is an appeal by the plaintiff below from a summary final judgment entered by the Civil Court of Record in favor of the defendant in an action charging tortious interference with a contract for a real estate brokerage commission.
The summary judgment was granted after trial court had denied defendant’s motion to strike and dismiss the third amended cojnplaint. The court, after having considered the deposition of the plaintiff, the written interrogatory and all the pleadings of the parties, found “that there is no material issue of fact to be determined and that the defendant, Louis Florio is entitled to judgment as a matter of law”.
The presence or absence of a cause of action was determined, by the trial court when it denied the motion to dismiss. Therefore, the ultimate question to be decided on’ motion for summary judgment was the presence or absence of disputed facts relevant to the issue formed by the pleadings. It is only in the event of absence of such issues of fact that a summary judgment can be properly entered.1
The movant had the burden to show from the pleadings, depositions and interrogatories on file that there was no genuine issue as to any material fact and that the movant was entitled to a judgment as a matter of law.
Our examination of the record discloses that the movant failed to carry his burden. Therefore, we must conclude that the trial court erred in determining that the defendant was entitled to the judgment as a matter of law. Accordingly the judgment appealed is reversed.
Reversed.
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Cited By
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Mendez v. Blackburn, 205 So. 2d 697 (Fla. 2d DCA 1967)…he complaint, this in some way precluded the granting of the Sheriff’s motion for summary judgment. This does not follow at all. Even the two cases cited by plaintiffs, Wilson v. Bachrach, Fla.1953, 65 So. 2d 546, and Lewis v. Florio, Fla.App. 1965, 179 So. 2d 898, are not authority for this proposition. As said in Wilson, the denial of a motion to dismiss merely determines that plaintiff’s complaint on its face sets forth a cause of action, but that the issue upon a motion for summary judgment is whether the…
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Stafford v. Barclays Bank Del. (9th Cir. Ct. App. Div. 2015)…ot ripe for summary judgment and reversed for a trial on the merits); Montadas v. Dade Scrap Iron and Metal, Inc., 666 So. 2d 1054, 1055 (Fla. 3d DCA 1996) (entry of summary judgment is inappropriate where there are disputed facts); Lewis v. Florio, 179 So. 2d 898, 899 (Fla. 3d DCA 1965) (when the record discloses the presence of disputed facts, summary judgment should not be granted). Stafford also asserts that there are disputed facts as to service. He avers that the process server must have gone to the wr…
Authorities Cited
- Wilson v. Bachrach, 65 So. 2d 546 (Fla. 1953)