ALAN M. MOSELEY AND EARLENE MOSELEY, HIS WIFE, APPELLANTS,
v.
BI-LO SUPERMARKET, INC., A FLORIDA CORPORATION, AND FUCHS BAKING COMPANY ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Mortgagees appealed a summary dismissal of their complaint against a baking company that allegedly wrongfully levied execution on mortgaged supermarket property, destroying the mortgagees' security. The court reversed, holding that a mortgagee may bring an action against a third party for wrongful destruction of mortgaged property, and that genuine issues of material fact precluded dismissal.
A mortgagee may bring an action against a third party for wrongful destruction of mortgaged property, including destruction under color of a writ of execution where the levy is wrongful. The trial court erred in dismissing the complaint without following proper summary judgment procedures, as genuine issues of material fact existed regarding whether the levy was wrongful.
[1] A trial court may not dismiss a complaint with prejudice following a proffer of the plaintiff's case and argument of counsel without providing the required notice and opp…
[2] A mortgagee may bring an action against a third party for the wrongful destruction of property that serves as security for the mortgage.
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“It is clear that an action may be brought in Florida by a mortgagee against a third party for the wrongful destruction of the property secured by a mortgage.”
Establishes the core substantive right underlying the mortgagees' claim
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMoseley held a mortgage on real property operated as a Bi-Lo Supermarket. Fuchs Baking Company obtained a judgment against Cecil Criswell, the mortgag…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Notice Requirements For Summary Judgment cases and more on FLexlaw
PER CURIAM.
Moseley, a mortgagee of real property, filed a two count complaint; count 1 was against Bi-Lo Supermarket as mortgagor to foreclose the mortgage. This count was settled prior to the trial. Count 2 was against the appellee here, Fuchs Baking Company. The complaint alleged that Fuchs had secured a judgment against one Cecil Criswell, doing business as Bi-Lo Supermarket, and that pursuant to execution upon said judgment, the defendant Fuchs had directed the sheriff, through the use of a locksmith key, to enter the premises of Bi-Lo Supermarket, Inc., and to seize the property of that corporation. The complaint alleged that the sheriff, acting at the direction of Fuchs, not only removed property but also caused the premises to suffer economic damage. The plaintiff alleged that not only was the levy illegal but also wrongful in that it destroyed plaintiff’s security under its mortgage. The defendant moved to dismiss the complaint; the motion was denied. After extensive discovery, the cause came on for trial. At trial, the judge asked for a statement of the facts which the plaintiff expected to prove. After receiving such statement, the trial court entered an order as follows:
“THIS CAUSE came before the Court for Non-Jury Trial as to the Plaintiffs’ Amended Complaint against Defendant, FUCHS BAKING CO., and upon proffer of the Plaintiffs’ case and argument of counsel for the parties, it is
“ORDERED AND ADJUDGED:
“That the Plaintiffs’ Amended Complaint and Claim herein is dismissed, with prejudice, as to Defendant, FUCHS BAKING CO.”
This appeal is from that judgment.
We think that it is important to point out that the procedure followed by the trial court is not provided for by any rule of civil procedure. In event the trial court thinks that summary final judgment is proper, it is necessary that the party moved against be given the notice required by the summary judgment rule and be allowed an opportunity to meet the question of whether there is a genuine issue of material fact by the presentation of affidavits and the citations to facts established by the pleadings and the discovery process. See Fla.R.Civ.P. 1.510; and Babb v. Lincoln Auto Finance Co., 133 So. 2d 566 (Fla.3d DCA 1961). It is clear that an action may be brought in Florida by a mortgagee against a third party for the wrongful destruction of the property secured by a mortgage. Cf. Wilson v. Bankers Inv. Co., 47 So. 2d 779 (Fla.1950). It has further been held that even where the wrongful destruction of the security is under color of a writ of execution, the action may arise where the levy is wrongful. See Toomer v. Fourth Nat. Bank of Jacksonville, 68 Fla. 555, 67 So. 225 (1915); and Granat v. Biscayne Trust Co., 109 Fla. 485, 147 So. 850 (1933).
We hold that there is a genuine issue of material fact revealed by the pleadings, answers to interrogatories and depositions in this case of whether the levy of execution by Fuchs Baking Company amounted to a wrongful destruction of the property which was security upon the plaintiff’s mortgage. Therefore, the judgment appealed is reversed and the cause is remanded for trial.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…d Leases upon and after receipt of such demand and notice.... . See supra note 7. . In Florida a mortgagee may bring an action against a third party for wrongful destruction of property secured by a mortgage. See Moseley v. Bi-Lo Supermarket Inc., 341 So. 2d 222 (Fla. 3d DCA 1977). . See also Allstate Finance v. Zimmerman, 272 F. 2d 323 (5th Cir.1959) (where damage to a mortgaged property occurs the right of action by the mortgagee is only for an amount not exceeding the mortgage debt). .Section 812.014,…
-
Muncey v. Star Brite Distribs., Inc., 378 So. 2d 1326 (Fla. 3d DCA 1980)…n, sua sponte, entering a summary final judgment against the plaintiff, where there was no motion pending therefor and the plaintiff had no notice or opportunity to present opposing affidavits. Fla.R.Civ.P. 1.510; Moseley v. Bi-Lo Supermarket, Inc., 341 So. 2d 222 (Fla. 3d DCA 1976); and Babb v. Lincoln Auto Finance Co., 133 So. 2d 566 (Fla. 3d DCA 1961). The cases of Roberts v. Braynon, 90 So. 2d 623 (Fla.1956) and Raphael v. Koretzky, 102 So. 2d 746 (Fla. 3d DCA 1958) relied upon by the defendant are distin…
-
Fruhmorgen v. Watson, 490 So. 2d 1032 (Fla. 2d DCA 1986)…le of Civil Procedure 1.510 and be allowed an opportunity to meet the question of whether there exists a genuine issue of material fact. Muncey v. Star Brite Distributors, Inc., 378 So. 2d 1326 (Fla. 3d DCA 1980); Moseley v. Bi-Lo Supermarket, Inc., 341 So. 2d 222 (Fla. 3d DCA 1977). Here, as in Muncey and Moseley, there was no motion pending for summary judgment and none was made by appellee. Even if there had been, we have held that a trial court may not grant a party’s oral motion for summary judgment made…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Babb v. Lincoln Auto Fin. Co., 133 So. 2d 566 (Fla. 3d DCA 1961)
- Granat v. Biscayne Tr. Co., 109 Fla. 485 (Fla. 1933)
- Toomer v. Fourth Nat'l Bank of Jacksonville, 68 Fla. 555 (Fla. 1915)