Opinion
No. 70-203.
June 9, 1970.
Appeal from the Circuit Court, Dade County, David Popper, J.
Alfred D. Bieley, Miami, for appellant.
August, Nimkoff Gladstone, Miami, for appellee.
Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.
Appellant seeks review of an adverse summary judgment dismissing a complaint seeking rescission of a deed, allegedly executed as a result of fraud and undue influence practiced by the appellee upon the grantor. We reverse.
Ordinarily, fraud and undue influence cases are not the proper subject of summary judgment. As to fraud, see: Alepgo Corporation v. Pozin, Fla.App. 1959, 114 So.2d 645; Dean v. Gold Coast Theatres, Inc. Fla.App. 1963, 156 So.2d 546. As to undue influence, see: In Re Knight's Estate, Fla.App. 1959, 108 So.2d 629. This is not to say that there may not be unusual circumstances which will permit a summary judgment in a fraud or undue influence case, but the record in the instant appeal does not present such a unique situation and the plaintiff in the trial court should have been entitled to a full evidentiary hearing.
Reversed and remanded for further proceedings not inconsistent herewith.