DAVAR CORPORATION, APPELLANT,
v.
TROPIC LAND IMPROVEMENT CORPORATION, A FLORIDA CORPORATION, APPELLEE
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Appellant Davar Corporation appealed a summary judgment in favor of Appellee Tropic Land Improvement Corporation on a mechanic's lien foreclosure claim. The court reversed the summary judgment, finding genuine issues of material fact existed and questioning the propriety of final judgment while a counterclaim remained pending.
Summary judgment was improper because controverted questions of fact existed regarding appellee's right to recover and the proper amount of recovery. Additionally, final judgment should not have been entered on the plaintiff's claim while the counterclaim remained pending without at least staying execution.
[1] A notice of appeal is adequate to review a summary judgment when the assignment of error, brief, and record clearly indicate the intent to appeal the summary judgment, de…
[2] Summary judgment is improper when there are controverted questions of fact concerning a party's right to recover and the amount thereof.
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Join FLexlaw to unlock all legal intelligence“Our reading of the depositions and other evidentiary matters considered by the trial court convinces us that appellee was not entitled to a summary judgment. There are controverted questions of fact concerning appellee's right to recover, and if so, how much.”
Establishes that the court found material factual disputes precluding summary judgment
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Join FLexlaw to unlock all legal intelligenceAppellee sued to foreclose a $60,000 mechanic's lien against appellant's property. Appellant asserted a set-off based on alleged breaches of contract …
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PER CURIAM.
Appellee sued to foreclose a mechanic’s lien in the amount of $60,000 against appellant’s property. Appellant alleged a set off in its answer as a result of various alleged breaches of contract by appellee. In addition, appellant counterclaimed for damages occurring as a result of appellee’s breaches of the contract. Appellant also charged that a lien filed by appellee was so grossly exaggerated in amount as to constitute a fraudulent lien.
The trial court found there was no genuine issue of material fact regarding appel-lee’s complaint and entered summary judgment thereon in favor of appellee for $8895.37, together with interest, costs, and attorney’s fees. The counterclaim remains pending in the trial court.
The notice of appeal states the appeal is taken from the order denying appellant’s motion for rehearing. But it is obvious from the assignment of error, appellant’s brief, and the record on appeal that appellant intends to seek review of the final summary judgment for appellee rendered July 30, 1974. Accordingly, the notice of appeal is adequate for us to review the summary judgment in question. State ex rel. Poe v. Allen, Fla.1967, 196 So. 2d 745.
Our reading of the depositions and other evidentiary matters considered by the trial court convinces us that appellee was not entitled to a summary judgment. There are controverted questions of fact concerning appellee’s right to recover, and if so, how much.
We also question the propriety of entering a final summary judgment for the plaintiff-appellee while a counterclaim remains undisposed of without at least staying execution thereon. To allow a plaintiff to recover judgment and have execution while a defendant’s counterclaim remains undisposed of might well result in the plaintiff recovering on its claim without the ability to respond should the defendant recover on its counterclaim. We think the better practice in that situation would be to grant the motion for partial summary judgment on plaintiff’s claim in a specific amount but withhold final judgment thereon until the outcome of the counterclaim is determined, or to grant plaintiff a final judgment but suspend execution thereon until the counterclaim is determined. See: Annot: Summary Judgment-Counterclaim, 8 A.L.R.3d 1361, §§ 5, 6(a). Cf. Netterville v. Osborn, Fla.App. 1st 1962, 139 So. 2d 921. Accordingly, the summary judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.
CROSS, OWEN and DOWNEY, JJ., concur.
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Cited By (12 total)
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Carpenter v. Super Pools, Inc., 534 So. 2d 426 (Fla. 5th DCA 1988)…he distribution order, this court may consider the earlier summary judgment where, as here, it is obvious from the points raised, the record, and the briefs that review of the summary judgment is sought. Davar Corp. v. Tropic Land Improvement Corp., 330 So. 2d 482 (Fla. 4th DCA 1976). Super Pools contends that the earlier dismissal of the Carpenters’ first appeal precludes review here as the first dismissal operates as law of the case. This argument is unavailing on two grounds. First, there is no showing t…
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Zanathy v. Beach Harbor Club Ass'n, Inc., 343 So. 2d 625 (Fla. 2d DCA 1977)…ss and injunctive relief regarding the carports, at the time the set-off is considered. Until these counterclaims are disposed of execution of the money judgment awarded by the trial court is stayed. See Davar Corp. v. Tropic Land Improvement Corp., 330 So. 2d 482 (Fla. 4th DCA 1976.2 Accordingly the “matters undisposed of” transferred to Judge Gobbie by the final judgment include appellee’s claim for a lien and assessments on unit E-312 and for attorneys’ fees and the issues raised in the counterclaims refe…
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Reliance Forwarding Co. v. Nilson VAN & Storage, 387 So. 2d 513 (Fla. 5th DCA 1980)…gnored the pending counterclaim of Reliance. This was error. The trial court should have entered a partial summary judgment for the plaintiff, appel-lee here, and then taken evidence on the counterclaim. Davar Corp. v. Tropic Land Improvement Corp., 330 So. 2d 482 (Fla. 4th DCA 1976); Netterville v. Osborn, 139 So. 2d 921 (Fla. 1st DCA 1962); Annot., 8 A.L.R.3d 1361 (1966). Alternatively, the trial court could have entered a final summary judgment on the complaint and stayed its execution pending resolution o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Alfred Gordon POE & Doris v. Poe, 196 So. 2d 745 (Fla. 1967)
- Netterville v. Osborn, 139 So. 2d 921 (Fla. 1st DCA 1962)