DEBRA EARLENE GRAHAM, ALSO KNOWN AS MRS. THOMAS GRAHAM, APPELLANT,
v.
THE FIRST MARION BANK, A FLORIDA CORPORATION, APPELLEE
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A bank customer appealed a summary judgment dismissing her wrongful dishonor claim after the bank improperly charged a check signed by a third party (not authorized on the account) against her account. The court reversed, holding that genuine issues of material fact existed regarding whether the bank had the right to charge the check and whether it wrongfully dishonored a subsequent check.
The summary judgment was improper because genuine issues of material fact existed that should have been submitted to a jury. The bank had no legal or contractual right to charge against the plaintiff's account a check signed by Billy J. Walker, even though endorsed by her husband, and a jury could reasonably have concluded that the plaintiff proved her allegations of wrongful dishonor.
[1] A summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
[2] A bank has no legal or contractual right to charge a customer's account for a check not signed by the account holder, even if endorsed by the account holder's spouse.
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Join FLexlaw to unlock all legal intelligence“two conditions must exist before the entry of a summary judgment is authorized: (1) there must be no genuine issue as to any material fact; and (2) the moving party must be entitled to a summary judgment as a matter of law”
Establishes the legal standard for summary judgment in Florida
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Join FLexlaw to unlock all legal intelligenceMrs. Graham maintained a checking account at First Marion Bank that permitted withdrawals only on her signature. In May 1967, a check payable to Graha…
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The plaintiff in an action for wrongfully dishonoring a check has appealed from a final summary judgment entered by the Circuit Court for Marion County in favor of the defendant bank.
The ultimate question presented for determination in this appeal is whether that summary judgment was properly entered under our procedural rules governing the entry of such judgments.
The key provision in those rules, contained in Rule 1.510 of the Florida Rules of Civil Procedure, 31 F.S.A., provides that at a hearing upon a party’s motion for a summary judgment, the “judgment sought” shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no *794genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
In many cases this court has pointed out that, under the quoted rule, two conditions must exist before the entry of a summary judgment is authorized: (1) there must be no genuine issue as to any material fact; and (2) the moving party must be entitled to a summary judgment as a matter of law. See, for example, Smith v. City of Daytona Beach, 121 So.2d 440 (Fla.App.1960).
In the case at bar the plaintiff alleges in her complaint that the defendant wrongfully, negligently, and maliciously dishonored a check which she had drawn against her checking account in the defendant bank, which account was in the name of Mrs. Thomas Graham, with withdrawals being permitted solely on the signature of that name; that in May, 1967, the defendant improperly withdrew $115 from the plaintiff’s said account without her knowledge under these circumstances: a check was made payable to Graham Colonial Oil in the amount of $110, dated May 12, 1967, signed by “Billy J. Walker” and endorsed by the plaintiff’s husband, Thomas Graham. This check was returned to the defendant uncollected, and the said endorser was notified. Upon the return of this check the defendant, under the direction of its cashier, charged this check against the plaintiff’s said account. When the plaintiff received her bank statement about June 1, 1967, she immediately informed an employee of the defendant, which employee advised her that the matter would be corrected. This check was presented for payment within a reasonable time by Lowe at the defendant bank, which dishonored the check.
As a result of the defendant’s dishonoring of the said check, the plaintiff discovered that she was going to be arrested, and she contacted the bank to learn why the monies had not been recredited to her account, and the defendant’s cashier told her that the money that the defendant had taken from her account would not be returned to her and that the defendant had a right to charge her account and there was nothing she could do about it.
Later the plaintiff was arrested on a worthless check charge on Lowe’s affidavit, and, after a preliminary hearing, she was released from the criminal charge.
In view of the foregoing evidence which was before the court at the hearing on the defendant’s motion for a summary judgment, we do not see how it can be held that there was no genuine issue as to a material fact, nor that the defendant was entitled to a summary judgment as a matter of law.
The defendant had no legal or contractual right to charge against the plaintiff’s said account a check signed by “Billy J. Walker,” even though endorsed by her husband.
In our opinion, at the hearing on the defendant’s motion for a summary judgment there was sufficient evidence in the depositions, answers to interrogatories, and affidavits from which a jury could have reasonably concluded that the plaintiff had proved the allegations of her complaint and hence there were genuine issues of material fact which should have been submitted to a jury for its determination.
Therefore, the final summary judgment appealed from herein should be, and it is, reversed and the cause remanded with directions for further proceedings consistent with the views hereinabove set forth.
Reversed and remanded with directions.
WIGGINTON and SPECTOR, JJ., concur.
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Coquina Ridge Props. v. E. W. Co., 255 So. 2d 279 (Fla. 4th DCA 1971)…ng the entry of summary judgment. Before summary judgment may be granted there must be no genuine issue as to any material fact and the moving party must be entitled to summary judgment as a matter of law. Graham v. First Marion Bank, Fla.App.1970, 237 So. 2d 793; Rule 1.510, FRCP, 31 F.S.A. See also Shollenberger v. Baskin, Fla.App. 1969, 227 So. 2d 79. Conversely, if disputed issues exist as to any material fact a summary judgment should not be granted. See 30 Fla.Jur., Summary Judgment, § 9. The trial cou…
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C.A. Hansen Corp. & C.A. Hansen, Inc. v. Wicker, 565 So. 2d 812 (Fla. 3d DCA 1990)…ues of material fact and that Hansen was entitled to judgment as a matter of law. Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501 (Fla.1982); Coast Cities Coaches, Inc. v. Dade County, 178 So. 2d 703 (Fla.1965); Graham v. First Marion Bank, 237 So. 2d 793 (Fla. 1st DCA 1970); Graff Enter, v. Canal Ins. Co., 213 So. 2d 738 (Fla. 1st DCA 1968); Fla.R.Civ.P. 1.510(c). The summary judgment was rendered by a competent tribunal, and thus, satisfies the first Restatement requirement. [*814] We find no merit…
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Crownover v. Masda Corp., 983 So. 2d 709 (Fla. 2d DCA 2008)…da’s motion for summary judgment did not even mention this critical issue. It follows that Masda did not meet its burden of demonstrating that it was entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); Graham v. First Marion Bank, 237 So. 2d 793, 793-94 (Fla. 1st DCA 1970). III. CONCLUSION Because Masda completely failed to establish a basis for the exercise of personal jurisdiction over Ms. Crownover, the circuit court erred in granting Masda’s motion for summary judgment and in entering…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Otie Stills v. Weil-Maas, Inc., 121 So. 2d 440 (Fla. 2d DCA 1960)