Hamilton's Bar & Grill, Inc. v. Bay Bank & Trust Co.

District Court of Appeal of Florida

Hamilton's Bar & Grill, Inc. v. Bay Bank & Trust Co.

646 So. 2d 847, 1994 Fla. App. LEXIS 12793, 1994 WL 712736

District Court of Appeal of Florida·Decided December 23, 1994·No. No. 94-267·Published

Opinion

ERVIN, Judge.

This is an appeal from a final order dismissing a complaint with prejudice. We affirm in part, reverse in part and remand. As to the two counts of the complaint alleging fraud, the trial court was required to take the plaintiffs allegation in its complaint as true that it did not know its equity had been fraudulently calculated until 1992. See Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989). Therefore, whether plaintiff could have discovered the facts that gave rise to counts II and III with the exercise of due diligence remains an issue of fact.

Dismissal of count I alleging breach of oral agreement is AFFIRMED, dismissal of counts II and III is REVERSED, and the ease is REMANDED for further proceedings.

JOANOS and MINER, JJ., concur.

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ERVIN, Judge.

This is an appeal from a final order dismissing a complaint with prejudice. We affirm in part, reverse in part and remand. As to the two counts of the complaint alleging fraud, the trial court was required to take the plaintiffs allegation in its complaint as true that it did not know its equity had been fraudulently calculated until 1992. See Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989). Therefore, whether plaintiff could have discovered the facts that gave rise to counts II and III with the exercise of due diligence remains an issue of fact.

Dismissal of count I alleging breach of oral agreement is AFFIRMED, dismissal of counts II and III is REVERSED, and the ease is REMANDED for further proceedings.

JOANOS and MINER, JJ., concur.

Hamilton's Bar & Grill, Inc. v. Bay Bank & Trust Co., 646 So. 2d 847, 1994 Fla. App. LEXIS 12793, 1994 WL 712736 (Fla. Ct. App. 1994).

Pincite

646 So. 2d 847 (Hamilton's Bar & Grill, Inc. v. Bay Bank & Trust Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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