Barrios v. Duran

496 So. 2d 239, 11 Fla. L. Weekly 2266

• Court: District Court of Appeal of Florida
• Decided: October 28, 1986
• Docket: 85-2708
• Status: Published

Opinion

496 So.2d 239 (1986)

Eligio BARRIOS and Goldstone Company, N.V., Appellants,
v.
Alfredo DURAN, Appellee.

No. 85-2708.

District Court of Appeal of Florida, Third District.

October 28, 1986.

Proenza, White & Huck and H. Mark Vieth, Miami, for appellants.

Dixon, Dixon, Hurst & Nicklaus and William Wicks III, Miami, for appellee.

Before BARKDULL, BASKIN and FERGUSON, JJ.

PER CURIAM.

By this appeal we are called upon to review the propriety of a final summary judgment disposing of a counter-claim and cross-claim. We reverse.

There was a disputed issue of fact as to the alleged attorney-client relationship between the appellants and the appellee. De Los Salmones v. Stolar, 357 So.2d 261 (Fla. 3d DCA 1978). There is also an issue of fact as to the intention of the parties in the execution of an agreement to which the appellee is not a party. Milford v. Metropolitan Dade County, 430 So.2d 951 (Fla.3d DCA 1983); Letiziano v. Lytal, 427 So.2d 321, 324 (Fla. 4th DCA 1983); Consolo v. A.M.K. Corporation, 344 So.2d 1285 (Fla. 3d DCA 1977). The issue of fraud generally should not be disposed of by summary judgment. Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981); Nessim v. DeLoache, 384 So.2d 1341 (Fla. 3d DCA 1980); Hermes v. Anton, 300 So.2d 46 (Fla. 3d DCA 1974).

Therefore for the reasons stated, the final summary judgment adverse to the appellants on the cross-claim and the counter-claim be and the same is hereby reversed and the matter returned to the trial court for further proceedings.

Reversed and remanded with directions.