Opinion
No. 75-1818.
January 4, 1977. Rehearing Denied January 26, 1977.
Appeal from the Circuit Court, Dade County, John Red Lake, J.
Alexander S. Gordon and Richard P. Kenney, Miami, for appellants.
Bradford, Williams, McKay, Kimbrell, Hamann Jennings and Joseph W. Womack, Miami, for appellee.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
The appellants were the plaintiffs in the trial court. This appeal is from a summary final judgment entered upon their complaint against General Motors Acceptance Corporation for damages for the wrongful repossession of property under a lien. The record, with the benefit of all inferences which reasonably can be drawn therefrom, reveals the existence of a genuine issue of material fact of whether the repossession was wrongful in that it was accomplished by intimidation by way of the defendant appearing at the plaintiff's property with an off-duty police officer who was there ". . . to see that the peace was not breached."
A second issue which appears is whether, under the circumstances of this case, when the plaintiff appeared during the removal of the property and attempted to stop the removal, the continuance of the removal was a wrongful repossession. See Holl v. Talcott, 191 So.2d 40 (Fla. 1966); and Visingardi v. Tirone, 193 So.2d 601 (Fla. 1966).
We, therefore, reverse this cause and remand it for further proceedings. We do not, by this remand, bar subsequent proceedings under Fla.R.Civ.P. 1.510(d), whereby the trial court may designate material facts which exist without substantial controversy.
Reversed and remanded.