Pena v. Tampa Federal Savings & Loan Ass'n

BOARDMAN, Judge. Appellants/cross-appellees/defendants, Antonio F. Pena (Antonio), The Tony Pena Corporation (Pena Corp.), and Tony Pena Financial Corporation (Financial Corp.) appeal the partial final summary judgment entered in favor of appellee/cross-appel-lant/plaintiff Tampa Federal Savings and Loan Association (Tampa Federal) in an action to foreclose a mortgage. Tampa Federal cross appealed. Tampa Federal filed this action to foreclose 57 lots. The 57 lots were at one time held solely by Pena Corp. but 56 of them had been transferred to Financial Corp. pri- or to institution of the foreclosure suit. Antonio was president and sole stockholder of both corporations. Tampa Federal filed a motion for summary judgment seeking foreclosure of the 57 lots owned by both corporations. In the instrument designated “PARTIAL SUMMARY FINAL JUDGMENT OF FORECLOSURE” the trial judge granted the motion for summary final judgment as to the 56 lots owned by Financial Corp. Because Antonio and Pena Corp. had made allegations of fraud, the judge reserved jurisdiction for trial on the foreclosure of the one remaining lot held by Pena Corp. and on the counterclaim of Antonio and Pena Corp. Appellants argue that the court did not have the authority to enter a partial summary judgment. Although it may be surprising, the Florida Rules of Civil Procedure, unlike the Federal Rules of Civil Procedure, do not permit entry of a final summary judgment until the entire case is resolved. This is true even where there are distinct and severable multiparties or multi-claims. The Florida rules incorporated the summary judgment rule, Rule 56 of the federal rules, but did not incorporate Rule 54 of the federal rules which specially allows for partial judgments as to several claims or parties joined in one action. Under the scheme set out by the federal rules and followed by the Florida rules, a party may move for summary judgment as to one or more claims. See Fed.R.Civ.P. 56; Fla.R.Civ.P. 1.510. In both jurisdictions where the entire case cannot be finally disposed of on the motion for summary judgment, the trial judge is empowered by the summary judgment rule to separate those issues which require further litigation from those which are properly resolved on the record by summary judgment. The issues which are appropriate for immediate summary resolution are to be noted by an order stating that they have been disposed of by motion for summary judgment and reciting any pertinent undisputed facts. The rule does not contemplate that this order shall [817] be a final judgment on the issues which have been decided. The provisions of the order are to be ultimately incorporated into the final judgment at the end of the case. Pointer Oil Co. v. Butler Aviation of Miami, Inc., 293 So.2d 389 (Fla.3d DCA 1974). Rule 54(b) of the federal rules allows for a final judgment, including a final summary judgment, to be entered on resolution of multiple claims or of the issues between two or more of the parties. The trial judge must, however, expressly find that a final judgment should be entered under the circumstances and state that the judgment is final. Because there is no counterpart in the Florida rules to federal Rule 54(b), the Florida rules do not authorize entry of a partial summary judgment as a, final judgment. Fontainebleau Hotel Corp. v. Young, 162 So.2d 303 (Fla.3d DCA 1964). We hereby recede from our obiter dictum to the contrary in Morris v. Truax, 152 So.2d 515 (Fla.2d DCA 1963). Because a sale under a foreclosure decree may not be had until the decree is final, it is also necessary to vacate that part of the summary judgment which directs a sale pri- or to resolution of the entire case. The remaining provisions of the summary judgment shall be considered as interlocutory and may be subject to review upon appeal from the final judgment. On cross-appeal Tampa Federal argues that summary judgment should have been granted as to all 57 of the lots since (1) there were no issues of material fact except for those created by the counterclaim and defense of fraudulent representations and (2) the counterclaim and defense depended on an alleged oral agreement at variance with the terms of the written agreement which were inadmissible under the parol evidence rule. The argument is not sound, however, in light of the general rule that although an oral agreement may not be introduced to vary the written agreement it may be introduced to show that the written agreement was procured by fraudulent means. See 14 Fla.Jur. Fraud & Deceit § 80 (1957); Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904 (1938). REVERSED in part, and AFFIRMED in part. GRIMES, C. j., and OTT, J., concur.