Opinion
No. 85-273.
July 8, 1986.
Appeal from the Circuit Court, Dade County, Sam I. Silver, J.
Gilbride, Heller Brown and Scott A. Silver, Miami, for appellant.
Hertzberg Malinski and Norman Malinski, Miami, for appellees.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
The final summary judgment under review is affirmed as to counts III-VI of the amended complaint, and reversed and remanded for further proceedings as to count II of the amended complaint. We reach this result based on the following briefly stated legal analysis.
First, it is settled that an action by a creditor to set aside a fraudulent conveyance by his debtor lies under Section 726.01, Florida Statutes (1985), where, inter alia, the said conveyance takes place before the actual creation of the debt in question but with a requisite intent by the debtor to defraud the subsequent creditor. See Beasley v. Coggins, 48 Fla. 215, 37 So. 213 (1904); 13 Fla.Jur.2d Creditors' Rights and Remedies § 253 (1979); 37 C.J.S. Fraudulent Conveyances §§ 133, 134 (1943). We do not read Wieczoreck v. H H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984), certified question answered, 475 So.2d 227 (Fla. 1985), to stand for a contrary proposition. Second, there is, on this record, a genuine issue of material fact as to whether such a conveyance took place in this case as pled in count II of the amended complaint, thereby precluding the entry of a summary judgment on this count. See Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Fla.R.Civ.P. 1.510(c). Third, the remaining counts in the complaint are not viable based on this record.
Affirmed in part; Reversed in part.