Episalla v. Jarrell

539 So. 2d 3, 14 Fla. L. Weekly 444, 1989 Fla. App. LEXIS 694, 1989 WL 11264

• Court: District Court of Appeal of Florida
• Decided: February 15, 1989
• Docket: No. 87-2867
• Status: Published

Opinion

PER CURIAM.

Appellants claim the trial court erred when it entered a summary final judgment against them on their second amended counterclaim for breach of a real estate listing agreement and for slander of title resulting from the wrongful filing of a lis pendens. Appellants also claim the trial court erred in failing to grant their motion to file a third amended counterclaim. We affirm the trial court’s entry of summary judgment on their action for breach of contract and we hold that the trial court did not abuse its discretion by failing to grant appellants’ motion to file a third amended counterclaim.

Appellees concede that they should not have filed a notice of lis pendens against appellants’ property. However, appellees argue that appellants failed to prove they sustained any damages as a result of the lis pendens. Appellants claim the record contains evidence which establishes material questions of fact as to the damages that they sustained as a result of the wrongful filing of the lis pendens. We agree and reverse the summary final judgment on appellants’ claim for slander of title and remand this cause to the trial court for further proceedings to determine appellants’ damages, if any. See Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981).

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

DOWNEY, DELL and STONE, JJ., concur.