Summary
finding that the entry of summary judgment was premature when debtor's evidence showing motivation to sell his business tended to rebut the presumption of fraud creating an issue to be resolved by the trier of fact
Summary of this case from Gorrin v. Poker Run Acquisitions, Inc.Opinion
No. 71-741.
January 11, 1972.
Appeal from the Civil Court of Record for Dade County, John Red Lake, J.
Melvin D. Schiller, Coral Gables, for appellant.
Wicker, Smith, Pyszka, Blomqvist Davant, and Dan Draper, Jr., Miami, for appellee.
Before SWANN, C.J., and CHARLES CARROLL, J., and LESTER M. IGNATIUS, Associate Judge.
Appellant, an automobile dealer, seeks review of an adverse summary final judgment in an action whereby the appellant sought to recover damages under a contract of insurance, based upon an alleged fraud perpetrated by a third party in the purchase of an automobile. The appellee contended the act complained of did not constitute a fraudulent transaction so as to afford coverage.
Ordinarily, the issue of fraud is not a proper subject of a summary judgment. Fraud is a subtle thing, requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud. Alepgo Corporation v. Pozin, Fla.App. 1959, 114 So.2d 645; Bryant v. Small, Fla.App. 1970, 236 So.2d 150. While there may be some unusual circumstances permitting entry of a summary judgment, the record in the case sub judice does not present that unique situation which would permit entry of a summary judgment. Therefore, we reverse.
Reversed and remanded for further proceedings consistent herewith.