Hamilton's Bar & Grill, Inc. v. Bay Bank & Trust Co.

ERVIN, Judge. This is an appeal from a final order dismissing a complaint with prejudice. We affirm in part, reverse in part and remand. As to the two counts of the complaint alleging fraud, the trial court was required to take the plaintiffs allegation in its complaint as true that it did not know its equity had been fraudulently calculated until 1992. See Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989). Therefore, whether plaintiff could have discovered the facts that gave rise to counts II and III with the exercise of due diligence remains an issue of fact. Dismissal of count I alleging breach of oral agreement is AFFIRMED, dismissal of counts II and III is REVERSED, and the ease is REMANDED for further proceedings. JOANOS and MINER, JJ., concur.