JULIUS SCHURKMAN D/B/A S & S ASSOCIATES, APPELLANT,
v.
ALAN D. STOLAR AND LEONARD U. STOLAR, INDIVIDUALLY AND AS PARTNERS IN THE FIRM OF STOLAR & STOLAR, APPELLEES
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Schurkman appealed summary judgment against him in a legal malpractice and fraud action against attorneys Stolar & Stolar. The trial court granted summary judgment based partly on lack of standing, but the appellate court reversed the denial of leave to amend the complaint, holding that Schurkman could proceed as trustee for the five investors who funded the loan rather than in his individual capacity.
The trial court properly granted summary judgment on the issue of Schurkman's lack of standing to sue in his individual capacity, but improperly denied leave to amend the complaint. Schurkman had standing to bring the action as trustee for the five investors who contributed the funds, and the proper procedure required entry of summary judgment with leave to amend.
[1] A party may be granted leave to amend a complaint after summary judgment is entered if the presented matters indicate a potential cause of action or defense not previousl…
[2] An agent acting on behalf of investors may have standing to bring an action arising from a loan made by those investors, even if the agent lacks standing to sue on their…
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Join FLexlaw to unlock all legal intelligence“Where summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pled, or a better one than that pled, the proper procedure is to enter the summary judgment with leave to amend.”
Establishes the standard that when summary judgment is warranted but the party may have an alternative or better cause of action, amendment should be permitted rather than denying the motion.
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Join FLexlaw to unlock all legal intelligenceSchurkman engaged five investors to loan $65,000 to Caribbean Properties, Inc., with a note and mortgage prepared by defendants Stolar & Stolar. The d…
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PER CURIAM.
Julius Schurkman appeals an adverse final summary judgment for the defendants, Alan and Leonard Stolar, individually and as partners in the law firm of Stolar & Stolar, in this action charging them with malpractice and fraud.
Plaintiff-appellant, Julius Schurkman d/b/a S & S Associates, engaged five investors to loan Caribbean Properties, Inc. $65,-000 in consideration for Caribbean executing a note in this amount with interest at 15% per annum and pledging as security a mortgage deed encumbering its leasehold interest in an office building. This note and mortgage was prepared by defendants who represented that the mortgage was only subject to a first mortgage held by Biscayne Federal Savings and Loan Association. Subsequently, Caribbean defaulted on the payments and Schurkman instituted foreclosure proceedings. After prolonged litigation it was determined that there was a prior recorded “option to mortgage” superior to Schurkman’s mortgage. See Feemster v. Schurkman, 291 So. 2d 622 (Fla.3d DCA 1974). On January 30, 1975 Schurk-man in his individual capacity filed a complaint alleging malpractice and fraud on the part of Stolar & Stolar for deliberately and willfully withholding the fact that the prior recorded “option to mortgage” was superior to the Caribbean mortgage. After pretrial discovery, defendants moved for summary judgment and on April 6 the trial court entered an order granting summary judgment for the following reasons:
“1. The Defendants have demonstrated that the plaintiff, Julius Schurkman, had no standing to maintain this action.
“2. The Defendants have demonstrated that there are no genuine issues of material fact on the issue of whether the plaintiff, JULIUS SCHURK-MAN, sustained any damages as a proximate result of the alleged negligence of the Defendants, ALAN G. STOLAR and LEONARD U. STO-LAR, individually and as partners in the firm of STOLAR & STOLAR; and
“3. That the Defendants, ALAN G. STOLAR & LEONARD U. STO-LAR, individually and as partners in the firm of STOLAR & STOLAR, have demonstrated upon the facts and evidence, under the issues framed by the pleadings, that they are entitled to judgment as a matter of law.”
Summary judgment was entered and Schurkman filed a petition for rehearing seeking among other things leave to amend the complaint to reflect that he is bringing the action individually and in his capacity as trustee for the five investors. On May 11, 1976 the judge denied the motion for rehearing and to amend the complaint. We affirm in all respects save one, the denial of the motion for leave to amend the complaint.
Where summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pled, or a better one than that pled, the proper procedure is to enter the summary judgment with leave to amend. Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1963). The un-controverted evidence reflects that Schurk-man was acting as agent on behalf of the five investors at all times and while he has no standing to sue on his own behalf, he does have standing to bring an action arising out of the $65,000 loan on behalf of the investors..
We reverse that portion of the order of May 11, 1976 denying plaintiff’s motion to amend complaint, and remand the cause to the trial court to grant plaintiff leave to amend the complaint to reflect that he is instituting this action as trustee on behalf of the five investors who contributed the funds for the $65,000 loan to Caribbean.
Affirmed in part, reversed in part and remanded.
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Coudry v. City OF Titusville, 438 So. 2d 197 (Fla. 5th DCA 1983)…; Dorset House Ass’n, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3d DCA 1979); Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977), appeal añer remand 382 So. 2d 878 (Fla. 3d DCA 1980); Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977); Forte v. Tripp & Skrip, 339 So. 2d 698 (Fla. 3d DCA 1976); Keyes Co. v. Executive Center, Inc., 311 So. 2d 734 (Fla. 3d DCA 1975); Watier v. REW Crane Service, Inc., 240 So. 2d 177 (Fla. 4th DCA 1970), amended in other respects,…
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The First Nat'l Bank OF Tampa v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979)…dings, which was filed after entry of the order granting ap-pellee’s motion for summary judgment but before final summary judgment was entered. See Bradham v. Hayes Enterprises, Inc., 306 So. 2d 568 (Fla. 1st DCA 1975); see also Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977); Watier v. REW Crane Service, Inc., 240 So. 2d 177 (Fla. 4th DCA 1970), modified, 257 So. 2d 249 (Fla.1971). Accordingly, the order of final summary judgment is REVERSED and the cause REMANDED for further proceedings consistent w…
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Rauch v. Cent. Bank & Tr. Co. OF Miami, 453 So. 2d 459 (Fla. 4th DCA 1984)…s representative capacity as the beneficiaries’ agent. Moreover, it cannot be questioned that Rauch was entitled to commence this action in its representative capacity. See Durrant v. Dayton, 396 So. 2d 1225 (Fla. 4th DCA 1981); Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977); see also Kramer v. Smith, 99 Fla. 147, 128 So. 477 (1930); 3 Am.Jur.2d Agency § 92 (1962). [*461] Since neither Florida law nor the rules of civil procedure provide for the creation of an “ ‘involuntary plaintiff[J ” see Paul v.…
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
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Ruth E. Feemster under will of Robert M. Feemster v. Schurkman, 291 So. 2d 622 (Fla. 3d DCA 1974)