Codding v. Phillips, 73--770
| Decision Date | 23 April 1974 |
| Docket Number | No. 73--770,73--770 |
| Citation | 296 So.2d 554 |
| Parties | O. N. CODDING, Appellant, v. William L. PHILLIPS, Appellee. |
| Court | Florida District Court of Appeals |
Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellant.
Podhurst, Orseck & Parks and Edward I. Sternlieb, Miami, for appellee.
Before HENDRY and HAVERFIELD, JJ., and DREW, E. HARRIS, Associate Judge.
The plaintiff filed his complaint in the circuit court alleging breach of a franchise agreement and fraudulent misrepresentation. He now seeks review in this court upon a final summary judgment entered in favor only of defendant William L. Phillips.
The sole point raised by the parties is whether or not the trial court erred in granting summary judgment for defendant Phillips on the ground that the statute of limitations, Fla.Stat. § 95.11(5)(d), F.S.A., pertaining to causes of action alleging fraud, had run.
The statute provides that actions for fraud be commenced within three years, 'the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.'
The record demonstrates that the franchise agreement between this plaintiff, Codding, and defendant Career Enterprises, Inc. was entered into on November 29, 1968, and the complaint was filed on March 28, 1972, more than three years after the agreement was executed.
The plaintiff alleged that certain enumerated false misrepresentations concerning Career Enterprises, Inc., which is in the business of franchising vocational educational schools, were concealed for over two years from the plaintiff.
The complaint charged Phillips, as Career's president and chief executive officer, with the same material misrepresentations which induced the plaintiff to purchase one of these franchises for $25,000.
Defendant's position is that the trial court properly determined that the plaintiff's action was barred by Section 95.11(5)(d) because any fraud perpetrated occurred, if at all, prior to the time of the franchise agreement and that once the agreement was established, the plaintiff was on notice of the falsity of any representations made to him. The defendant cites the following provision of the franchise contract to buttress this fact:
Under Section 95.11(5)(d) 'discovery' of facts constituting fraud is...
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Korman v. Iglesias, 90-0119-CIV.
...fraud as barred by statute of limitations); Calder v. Uwanawich, 449 So.2d 911 (Fla. 3d Dist.Ct.App.1984) (same); Codding v. Phillips, 296 So.2d 554 (Fla. 3d Dist. Ct.App.) (issue of whether or not facts were sufficient to have discovered fraud was a legal question), cert. den., 304 So.2d 1......
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Calder v. Uwanawich, 83-1151
...(1979). See Steiner v. Ciba Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978), cert. denied mem., 373 So.2d 461 (Fla.1979); Codding v. Phillips, 296 So.2d 554 (Fla. 3d DCA), cert. denied mem., 304 So.2d 125 (Fla.1974); Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969); § 95.031, Fla.Stat. (......
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Brooks Tropicals, Inc. v. Acosta
...should have discovered the basis for a cause of action for fraud was one of law to be determined by the court. See Codding v. Phillips, 296 So.2d 554, 555 (Fla. 3d DCA 1974). The trial court erred in sending this question to the jury, which in turn incorrectly adopted Acosta's argument that......
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First Federal Sav. & Loan Ass'n of Wisconsin v. Dade Federal Sav. & Loan Ass'n, 80-968
...been discovered in the exercise of due diligence. Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969). See also Codding v. Phillips, 296 So.2d 554 (Fla. 3d DCA 1974). 3 As stated in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), under Florida law, a party is cha......