DOROTHY KELLY, APPELLANT,
v.
BUCKEYE HOLDING COMPANY, A FLORIDA CORPORATION AND G. HAROLD MARTIN, APPELLEES
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Dorothy Kelly appealed a summary judgment entered against her in a property dispute with Buckeye Holding Company and G. Harold Martin. Kelly had claimed to be the equitable owner of mortgaged property, alleging she paid the full consideration and that the defendants refused to reconvey it based on fraudulent representations. The court reversed, finding genuine issues of material fact precluding summary judgment.
Summary judgment was improper because genuine issues of material fact existed regarding ownership and the alleged breach of trust or fiduciary relationship between the parties, necessitating a full hearing on the merits.
[1] A summary judgment is precluded when genuine issues of material fact exist regarding property ownership.
[2] Genuine issues of material fact regarding the presence or absence of a breach of trust or fiduciary relationship preclude summary judgment.
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Join FLexlaw to unlock all legal intelligence“A review of the pleadings, depositions and answers to interrogatories on file together with other papers and affidavits reflects the existence of genuine issues of material fact with respect to the ownership of the subject property and in particular the presence (or nonpresence) of a breach of trust or fiduciary relationship between the parties and suggestions of fraudulent inducement.”
Establishes the court's finding of disputed material facts that preclude summary judgment
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Join FLexlaw to unlock all legal intelligenceStevenson filed suit to foreclose two mortgages on real property owned by Buckeye Holding Company, with Kelly occupying the premises claiming some rig…
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PER CURIAM.
This is an appeal by Dorothy Kelly, defendant and cross-plaintiff below, from a summary final judgment entered in favor of Buckeye Holding Company and G. H. Martin, defendants and cross-defendants below. The original complaint below was filed by one Stevenson seeking to foreclose two mortgages on real property naming defendant Buckeye as being the owner and in possession of the subject premises; and naming defendant Kelly as occupying the mortgaged premises claiming “some right, title and interest therein”. The cross-complaint filed by Kelly against Buckeye alleged, in effect and inter alia, that she was the equitable owner of the subject property by having paid the whole consideration thereon; that she permitted title to the property to be taken in the name of Buckeye based upon certain alleged representations made by Martin upon which Kelly relied; that Martin and Buckeye refused to reconvey the property back to her and that they “have or are attempting to convert said property to their own use after trust”. The cross-complaint sought an accounting and damages occasioned by the subject property not having been reconveyed back to her. A review of the pleadings, depositions and answers to interrogatories on file together with other papers and affidavits reflects the existence of genuine issues of material fact with respect to the ownership of the subject property and in particular the presence (or nonpresence) of a breach of trust or fiduciary relationship between the parties and suggestions of fraudulent inducement. The existence of these disputed material issues of fact precludes a determination in a summary proceeding and would necessitate a' full hearing on the merits. Nance v. Ball, Fla.App.1961, 134 So. 2d 35; Krantz v. Donner, Fla.App.1973, 285 So. 2d 699; Pompano Paint Co. v. Pompano Beach Bank & Trust Co., Fla.App.1968, 208 So. 2d 152; Coquina Ridge Properties v. East West Company, Fla.App.1971, 255 So. 2d 279; Automobile Sales, Inc. v. Federated Mutual Implement and Hardware Ins. Co., Fla.App.1972, 256 So. 2d 386; cf. 14 Fla.Jur., Fraud and Deceit, sec. 5.
Accordingly, the summary final judgment is reversed and the cause remanded to the trial court for further proceedings.
Reversed and remanded.
OWEN, C. J., and MAGER and DOW-NEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Allen v. Belcher, 303 So. 2d 55 (Fla. 4th DCA 1974)…deprive plaintiff of said commission thereby precluding a determination in a summary proceeding and necessitating a full hearing on the merits. See Nance v. Ball, Fla.App.1961, 134 So. 2d 35; see also Kelly v. Buckeye Holding Company, Fla.App.1974, 297 So. 2d 869. Accordingly, the summary final judgment is reversed and the cause remanded to the trial court for further proceedings. Reversed and remanded. WALDEN and MAGER, JJ„ and KIRKLAND, THOMAS E., Associate Judge, concur.…
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Buckeye Holding Co. v. Kelly, 327 So. 2d 196 (Fla. 1976)…on of the matter, the briefs and record, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution (1973). Accordingly, the writ must be and is hereby discharged, Fla.App., 297 So. 2d 869. It is so ordered. ADKINS, C. J., OVERTON, ENGLAND and SUNDBERG, JJ., SMITH, District Court Judge, and SHOLTS, Circuit Judge, concur. ROBERTS, J., concurs specially with an opinion.…
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Kelly v. Stevenson, 378 So. 2d 1304 (Fla. 4th DCA 1980)…ANSTEAD, Judge. This is an appeal from a judgment entered upon a verdict directed against the appellant and is the second appearance of this ease before this court. In Kelly v. Buckeye Holding Company, 297 So. 2d 869 (Fla. 4th DCA 1974) this court reversed a final summary judgment entered against the appellant. That opinion contained a concise statement of the case and this court’s disposition: The cross-complaint filed by Kelly against Buckeye alleged, in effe…
Authorities Cited
- Nance v. Linzy Ball and June Ball, 134 So. 2d 35 (Fla. 2d DCA 1961)
- Pompano Paint Co. v. Pompano Beach Bank & Tr. Co., 208 So. 2d 152 (Fla. 4th DCA 1968)
- Auto. Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So. 2d 386 (Fla. 3d DCA 1972)
- Coquina Ridge Props. v. E. W. Co., 255 So. 2d 279 (Fla. 4th DCA 1971)
- Dickerson v. State, 285 So. 2d 699 (Fla. 4th DCA 1973)
- Syd P. Krantz v. Donner, 285 So. 2d 699 (Fla. 4th DCA 1973)