MITZI ANN GIMENEZ, APPELLANT,
v.
ALEXANDER NAPOLES, MARIA NAPOLES, BARRY A. IMBER, AL-FLEX EXTERMINATORS, INC., AND STRUCTURAL TENTING CORPORATION, APPELLEES

Fla. 3d DCA | 2006-05-10
No. 3D05-1009
Before LEVY, GERSTEN, and FLETCHER, JJ.
928 So. 2d 506 Florida District Court of Appeal, Third District (2006)

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Holding

The court held that genuine issues of material fact existed regarding the alleged fraud, precluding summary judgment.


Facts & Procedural History

Plaintiff sued defendants for fraudulent misrepresentation, negligent misrepresentation, constructive fraud, civil theft, and civil conspiracy. The tr…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Mitzi Ann Giménez (“Gimenez”), appeals the trial court’s order, granting summary judgment in favor of Alexander Ñapóles, Maria Ñapóles, Barry A. Imber, Al-Flex Exterminators, Inc., and Structural Tenting Corporation (collectively “defendants”), in an action for fraudulent misrepresentation, negligent misrepresentation, constructive fraud, civil theft, and civil conspiracy. We reverse.

Summary judgment is proper when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). However, summary judgment is infrequently proper in fraud cases because the issue usually turns on the axis of circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge. See Cohen v. Kravit Estate Buyers, Inc., 843 So. 2d 989, 991 (Fla. 4th DCA 2003).

Here, we find that there are several genuine issues of material fact surrounding the alleged fraud, which merit a jury determination. Thus, the trial judge clearly should have not granted summary judgment. Accordingly, we reverse and remand for a trial on all issues.

Reversed and remanded.


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