Yunkers v. Yunkers, 87-466
| Decision Date | 17 November 1987 |
| Docket Number | No. 87-466,87-466 |
| Citation | 515 So.2d 419,12 Fla. L. Weekly 2641 |
| Parties | 12 Fla. L. Weekly 2641 Mildred M. YUNKERS, as Personal Representative of the Estate of Lee E. Yunkers, deceased, Appellant, v. Edna YUNKERS, Appellee. |
| Court | Florida District Court of Appeals |
Peter Kneski, Miami, for appellant.
Mark D. Gilwit, Miami, for appellee.
Before HENDRY, FERGUSON and JORGENSON, JJ.
In this appeal the plaintiff challenges the trial court's entry of judgment on the pleadings in favor of the defendant/counterclaimant/third party plaintiff.
In April, 1984 plaintiff Mildred Yunkers, as Personal Representative of the Estate of Lee Yunkers, deceased, filed a complaint against defendant Edna Yunkers, the decedent's mother, alleging that she had through fraud or undue influence extracted the sum of $15,000 from Lee Yunkers and converted to her use his automobile a short time prior to his death. Edna Yunkers filed an answer denying the allegations of the complaint and representing that any monies she received from the decedent were for payment of debts owed to her and that the automobile was a gift. She also filed a counterclaim alleging that as a result of a contract she had entered into with Lee Yunkers, the conditions of which the personal representative had failed to perform, she was entitled to sole and absolute ownership of Hialeah Vent and Wire Products Company, Inc. (Hialeah Vent). The relief sought in the counterclaim was money damages, as well as a transfer of the corporation's assets and income from the date of the alleged agreement. Edna Yunkers additionally filed a third party complaint against Hialeah Vent seeking specific performance of an alleged agreement for a transfer to her of all right, title and interest in the corporation. Following the filing of the personal representative's answer to the counterclaim, Edna Yunkers moved for judgment on the pleadings on her counterclaim and the motion was denied.
In September, 1986 the personal representative, through newly substituted counsel, moved to strike both the counterclaim and third party complaint or alternatively, for judgment on the pleadings on the ground that neither pleading had attached the referred to agreements upon which Edna Yunkers' claims were based. Edna Yunkers subsequently filed a "Motion for Rehearing for Judgment on the Pleadings." This motion and accompanying memorandum of law contended that judgment on the pleadings should be entered in favor of Edna Yunkers because the personal representative's answer had not denied paragraph 6 of the counterclaim, among others. Paragraph 6 alleged that as a result of an purported agreement on May 4, 1983 between Edna Yunkers and Lee Yunkers, Edna Yunkers was the sole and absolute owner of Hialeah Vent. The personal representative had, however, denied the existence of the alleged agreement in its answer to paragraph 5 of the counterclaim. Edna Yunkers further argued in her motion that the personal representative improperly sought to rely upon an affirmative defense--failure to produce the contracts at issue--which was waived because it was not raised in her answer to the counterclaim.
The court granted the personal representative's ore tenus motion to amend her answer to the counterclaim, stating that it appeared that the failure to answer paragraph 6 was inadvertent. An amendment was filed, denying paragraph 6. Additionally, the personal representative stated in a memorandum of law supporting her motion for judgment on the pleadings that Edna Yunkers had responded to a request to produce the alleged agreements by filing an unexecuted written agreement which was to be signed by Lee Yunkers, but was not. It was further contended that the instrument produced was to have been executed by only Lee Yunkers; that at best, it evidenced an intent to make a gift; and that such a gratuitous promise, unaccompanied by consideration other than love and...
To continue reading
Request your trial
-
Nationstar Mortg., LLC v. Zorie
...the moving party is clearly entitled to judgment.” Cutler v. Aleman, 701 So.2d 390, 391 (Fla. 3d DCA 1997) (quoting Yunkers v. Yunkers, 515 So.2d 419, 420 (Fla. 3d DCA 1987) ). “[T]he party that holds the note and mortgage in question has standing to bring and maintain a foreclosure action.......
-
Scarborough Associates v. Financial Federal Sav. and Loan Ass'n of Dade County, 93-1588
...only if, on the facts as admitted for purposes of the motion, the moving party is clearly entitled to judgment. Yunkers v. Yunkers, 515 So.2d 419, 420 (Fla. 3d DCA 1987) (citations The principal issue argued in the trial court was the proper interpretation of the Modification Agreement. 2 I......
-
Thompson v. Napotnik
...905 (Fla. 4th DCA 2004). "The court must accept as true all well-pleaded allegations of the non-moving party." Yunkers v. Yunkers, 515 So.2d 419, 420 (Fla. 3d DCA 1987). The applicable standard of review of a trial court's decision granting a judgment on the pleadings is de novo review. Syv......
-
Faircloth v. Garam
...the crucial question being whether a cause of action would be established by proving the plaintiff's allegations. Yunkers v. Yunkers, 515 So.2d 419 (Fla. 3d DCA 1987); Robert L. Turchin, Inc. v. Gelfand Roofing, 450 So.2d 554 (Fla. 3d DCA Based on these standards, appellants' complaint stat......