Tullo v. Horner, 73--1335
| Citation | 296 So.2d 502 |
| Decision Date | 25 June 1974 |
| Docket Number | No. 73--1335,73--1335 |
| Parties | Ralph A. TULLO and Helen M. Tullo, his wife, Appellants, v. Franklin M. HORNER, Individually and as Trustee, and M. E. Hammond, Appellees. |
| Court | Court of Appeal of Florida (US) |
Henry M. Cain, Coconut Grove, for appellants.
Simons & Simons, Miami, for appellees.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
The appellants brought an action in the circuit court seeking to recover compensatory and punitive damages for an alleged fraud of the defendant. After the filing of depositions and affidavits, the trial court entered a summary final judgment for the defendant.
Having reviewed this record, we reach the conclusion that a jury of reasonable men could find that the appellants have been defrauded. They allege, and the affidavits and depositions together with the exhibits to some degree substantiate appellants' position, that appellee as the holder of a second mortgage on their property wrongfully and fraudulently represented the amount due at the time of the purchase and thereafter exacted as a tribute a higher amount at the time of a refinancing of the loan upon the property. Appellee contends that there is no evidence of fraud but we think this position is untenable in view of the holding in Alepgo Corp. v. Pozin, Fla.App.1959, 114 So.2d 645; Automobile Sales, Inc. v. Federated Mutual Implement and Hardware Ins. Co., Fla.App.1972, 256 So.2d 386; Bryant v. Small, Fla.App.1970, 236 So.2d 150.
Appellee suggests that the summary final judgment should be sustained upon a holding that the action is barred by the statute of limitations. In cases of fraud, however, the statute ordinarily begins to run with the discovery of the fraud. See Fla. Stat. § 95.11(5)(d), F.S.A. We hold that there is a genuine issue of material fact as to when the plaintiff discovered, or should have discovered, the alleged fraud. Therefore, the summary final judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
To continue reading
Request your trial
-
Jones (Gordon, Laura) v. Childers (John H.), Talent Services, Inc.
...discovered, or reasonably should have discovered, defect in product, not from the date of sale of refrigerator); and Tullo v. Horner, 296 So.2d 502 (Fla.App. 3 Dist.1974) (holding that in cases of fraud, the statute of limitations ordinarily begins to run with the discovery of the fraud).12......
-
Brugiere v. Credit Commerciale France
...First Fed. Sav. & Loan Ass'n of Wis. v. Dade Fed. Sav. & Loan Ass'n, 403 So.2d 1097, 1099 (Fla. 5th DCA 1981) (citing Tullo v. Horner, 296 So.2d 502 (Fla. 3d DCA 1974)). When reviewing orders granting summary judgment, we must draw every possible inference in favor of the party against whom......
-
Rubin v. New Sunrise Inv. Corp.
...So.2d 772 (Fla. 4th DCA 1991); Steigman v. Danese, 502 So.2d 463 (Fla. 1st DCA), rev. denied, 511 So.2d 998 (Fla.1987); Tullo v. Horner, 296 So.2d 502 (Fla. 3d DCA 1974); Sec. ...
-
State ex rel. Division of Administration v. Oliff, GG-256
...1 accrues when the fraud or deceit was or should have been discovered. Section 95.031(1), Florida Statutes (1975); Tullo v. Horner, 296 So.2d 502 (Fla. 3rd DCA 1974). The question of discovery is a factual one, not appropriately passed upon at the pleadings stage. The trial judge correctly ......