RALPH A. TULLO AND HELEN M. TULLO, HIS WIFE, APPELLANTS,
v.
FRANKLIN M. HORNER, INDIVIDUALLY AND AS TRUSTEE, AND M. E. HAMMOND, APPELLEES
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The Tullos sued for fraud against Horner regarding alleged misrepresentation of the amount owed on a second mortgage. The trial court granted summary judgment for the defendant, but the appellate court reversed, finding that a jury could reasonably find fraud based on the evidence and that a genuine issue of material fact existed regarding when the fraud was discovered for statute of limitations purposes.
Summary judgment was improper because a jury of reasonable persons could find fraud based on the affidavits, depositions, and exhibits. A genuine issue of material fact exists as to when the plaintiffs discovered or should have discovered the fraud, making the statute of limitations defense a question for the jury rather than the trial court.
[1] A genuine issue of material fact exists regarding the discovery of fraud when the evidence suggests a dispute over when the plaintiff knew or should have known about the…
[2] In fraud cases, the statute of limitations ordinarily begins to run upon the discovery of the fraud.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a jury of reasonable men could find that the appellants have been defrauded”
Establishes the court's conclusion that sufficient evidence existed to preclude summary judgment and permit jury determination of fraud.
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Join FLexlaw to unlock all legal intelligenceThe Tullos alleged that Horner, as holder of a second mortgage on their property, fraudulently misrepresented the amount due at the time of purchase a…
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PER CURIAM.
The appellants brought an action in the circuit court seeking to recover compensatory and punitive damages for an alleged fraud of the defendant. After the filing of depositions and affidavits, the trial court entered a summary final judgment for the defendant.
Having reviewed this record, we reach the conclusion that a jury of reasonable men could find that the appellants have been defrauded. They allege, and the affidavits and depositions together with the exhibits to some degree substantiate appellants’ position, that appellee as the holder of a second mortgage on their property wrongfully and fraudulently represented the amount due at the time of the purchase and thereafter exacted as a tribute a higher amount at the time of a refinancing of the loan upon the property. • Appellee contends that there is no evidence of fraud but we think this position is untenable in view of the holding in Alepgo Corp. v. Pozin, Fla.App. 1959, 114 So. 2d 645; Automobile Sales, Inc. v. Federated Mutual Implement and Hardware Ins. Co., Fla.App. 1972, 256 So. 2d 386; Bryant v. Small, Fla.App. 1970, 236 So. 2d 150. Appellee suggests that the summary final judgment should be sustained upon a holding that the action is barred by the statute of limitations. In cases of fraud, however, the statute ordinarily begins to run with the discovery of the fraud. See Fla.Stat. § 95.11(5) (d), F.S.A. We hold that there is a genuine issue of material fact as to when the plaintiff discovered, or should have discovered, the alleged fraud. Therefore, the summary final judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State ex rel. v. The Honorable R. Hudson Oliff, 350 So. 2d 484 (Fla. 1st DCA 1977)…s, of course, would be after the effective date of Section 768.28. This cause of action, sounding as it does in fraud,1 accrues when the fraud or deceit was or should have been discovered. Section 95.031(1), Florida Statutes (1975); Tullo v. Horner, 296 So. 2d 502 (Fla. 3rd DCA 1974). The question of discovery is a factual one, not appropriately passed upon at the pleadings stage. The trial judge correctly denied the motion to dismiss as to the first count. Ms. Kinnon next argues Section 337.19(1), Florida S…
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Brugiere v. Credit Commerciale France, 679 So. 2d 875 (Fla. 1st DCA 1996)…3).... “In cases of fraud, the statute of limitations ordinarily begins to run with the discovery of the fraud.” First Fed. Sav. & Loan Ass’n of Wis. v. Dade Fed. Sav. & Loan Ass’n, 403 So. 2d 1097, 1099 (Fla. 5th DCA 1981) (citing Tullo v. Horner, 296 So. 2d 502 (Fla. 3d DCA 1974)). When reviewing orders granting summary judgment, we must draw every possible inference in favor of the party against whom summary judgment was granted. Smith v. Perry, 635 So. 2d 1019, 1020 (Fla. 1st DCA 1994) (citing Williams…
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Rubin v. NEW Sunrise Inv. Corp., 596 So. 2d 1099 (Fla. 3d DCA 1992)…PER CURIAM. Affirmed. See Hynd v. Ireland, 582 So. 2d 772 (Fla. 4th DCA 1991); Steigman v. Danese, 502 So. 2d 463 (Fla. 1st DCA), rev. denied, 511 So. 2d 998 (Fla.1987); Tullo v. Horner, 296 So. 2d 502 (Fla. 3d DCA 1974); § 95.031(2).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alepgo Corp. v. Pozin, 114 So. 2d 645 (Fla. 3d DCA 1959)
- Auto. Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So. 2d 386 (Fla. 3d DCA 1972)
- Harper v. State, 236 So. 2d 150 (Fla. 1st DCA 1970)
- Bryant v. Evans Small, 236 So. 2d 150 (Fla. 3d DCA 1970)