Klein v. Rothenberg

PER CURIAM. The appellants were the plaintiffs in an action claiming rescission of a contract of purchase and damages for alleged fraudulent representations made by the defendants as sellers to the plaintiffs as purchasers of an interest in a restaurant business. On this appeal from a summary final judgment for the defendants, the appellants present eighteen points but their main reliance is on the proposition that ordinarily fraud is not a proper subject of summary judgment. Bryant v. Small, Fla.App.1970, 236 So.2d 150. As noted in the cited opinion, “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, . . . ” Our review of this record convinces us that the summary judgment was properly entered in this case. The pleadings, the depositions of the plaintiffs and the affidavits on file show conclusively that (1) as to the rescission action, the plaintiffs are equitably estopped to maintain the action and (2) as to the damage claim, no actionable fraud is alleged in the complaint or particularized in the depositions or affidavits. Affirmed.