Industrial Sales & Service Corp. v. Duval Motors

District Court of Appeal of Florida

Industrial Sales & Service Corp. v. Duval Motors

245 So. 2d 891, 1971 Fla. App. LEXIS 6953

CourtDistrict Court of Appeal of Florida

DecidedMarch 23, 1971

DocketNo. 70-642

StatusPublished

Cited by1 cases

This text of 245 So. 2d 891 (Industrial Sales & Service Corp. v. Duval Motors) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Industrial Sales & Service Corp. v. Duval Motors, 245 So. 2d 891, 1971 Fla. App. LEXIS 6953 (Fla. Ct. App. 1971).

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Opinion

PER CURIAM.

The plaintiff, Industrial Sales and Service Corporation, appeals from a summary final judgment for the defendant, Duval Motors.

Plaintiff’s first two points assert that the trial court erred in the summary final judgment by holding (1) that plaintiff could not recover for breach of a contract as a matter of law and (2) that plaintiff could not recover for a tortious interference with business and contractual relations as a matter of law. We find no such rulings by the court in the final judgment.

The final judgment recites that the “pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue as to any material fact” and the defendant is entitled to a judgment as a matter of law.

We will not consider plaintiff’s first two points for reversal as we find that the trial court did not rule upon them. Plaintiff’s last point is directed toward the alleged error of the trial court in entering the final judgment because there were no genuine issues of material fact. This point is properly raised for consideration on appeal.

We have reviewed the record and find that there was conflicting and disputed evidence on several genuine issues of material fact which could not be resolved by the trial judge unless he passed upon the credi[892]*892bility of the witnesses or .weighed the evidence. He is not permitted to do this in ruling on motions for summary judgment. See Visingardi v. Tirone, Fla.1966, 193 So. 2d 601; Holl v. Talcott, Fla.1966, 191 So. 2d 40; Williams v. Board of Public Instruction, Fla. 1952, 61 So.2d 493; Crepaldi v. Wagner, Fla.App.1961, 132 So.2d 222; and Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404.

The summary final judgment is reversed and the cause remanded for further action consistent herewith.

It is so ordered.

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PER CURIAM.

The plaintiff, Industrial Sales and Service Corporation, appeals from a summary final judgment for the defendant, Duval Motors.

Plaintiff’s first two points assert that the trial court erred in the summary final judgment by holding (1) that plaintiff could not recover for breach of a contract as a matter of law and (2) that plaintiff could not recover for a tortious interference with business and contractual relations as a matter of law. We find no such rulings by the court in the final judgment.

The final judgment recites that the “pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue as to any material fact” and the defendant is entitled to a judgment as a matter of law.

We will not consider plaintiff’s first two points for reversal as we find that the trial court did not rule upon them. Plaintiff’s last point is directed toward the alleged error of the trial court in entering the final judgment because there were no genuine issues of material fact. This point is properly raised for consideration on appeal.

We have reviewed the record and find that there was conflicting and disputed evidence on several genuine issues of material fact which could not be resolved by the trial judge unless he passed upon the credi[892]*892bility of the witnesses or .weighed the evidence. He is not permitted to do this in ruling on motions for summary judgment. See Visingardi v. Tirone, Fla.1966, 193 So. 2d 601; Holl v. Talcott, Fla.1966, 191 So. 2d 40; Williams v. Board of Public Instruction, Fla. 1952, 61 So.2d 493; Crepaldi v. Wagner, Fla.App.1961, 132 So.2d 222; and Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404.

The summary final judgment is reversed and the cause remanded for further action consistent herewith.

It is so ordered.

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245 So. 2d 891, 1971 Fla. App. LEXIS 6953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-sales-service-corp-v-duval-motors-fladistctapp-1971.

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