227 So. 2d 234 | Fla. Dist. Ct. App. | 1969
This is an appeal by the plaintiff, P & T Electric Co., Inc., from a summary final judgment in favor of the defendants, Ralph Spadea, Jean Spadea, Mary Spadea and Nicholas Spadea. The plaintiff, appellant here, filed a complaint on 17 September 1965 in the Circuit Court for Broward County, Florida, against the defendants Ralph Spadea, Jean Spadea, and Mary Spadea. The complaint alleged that the plaintiff had obtained a money judgment against those defendants on 29 July 1965 in the Supreme Court of New York, County of Kings. The complaint demanded a judgment based on the New York judgment. On 20 September 1965' a similar complaint was filed by the plaintiff, P & T Electric Co., Inc., also in the Circuit Court for Broward County, Florida, against Nicholas Spadea. This complaint alleged that the plaintiff had obtained a money judgment against Nicholas Spadea in the same New York court which rendered the judgment against the other defendants. These two cases were consolidated by the lower court.
Ultimately, answers were filed by the defendants denying the essential allegations of the complaint and alleging as affirmative defenses that the New York court did not have jurisdiction over their persons and that the defendants had obtained discharges in bankruptcy from the United States District Court for the Southern District of Florida which discharged the New York judgments.
Both the plaintiff and the defendants filed a motion for summary judgment. A summary final judgment was entered by the lower court on 17 June 1968 in favor of all defendants. It is from this judgment that the plaintiff has appealed to this court, assigning as error the action of the lower court in denying the plaintiff’s motion for summary judgment and in granting the defendants’ motion for summary judgment.
Our review of the record indicates that there was no basis whatsoever upon which the lower court could have granted the plaintiff’s motion for summary judgment. The substantial issue before this court is whether or not the lower court committed error in granting the defendants’ motion for summary judgment.
The complaints established that the New York judgment against the defendant Nicholas Spadea was rendered on 27 April 1965 and the New York judgment against Ralph, Jean, and Mary Spadea was rendered on 29 July 1965. The record demonstrated — and the plaintiff’s brief concedes —that defendant Ralph Spadea was granted a discharge in bankruptcy on 5 July 1966 and that defendant Jean Spadea was granted a like discharge on 27 December 1966. The record demonstrated — and the plaintiff’s brief also concedes — that Nicholas and Mary Spadea were granted a discharge in bankruptcy on 8 January 1968. From copies of the orders of discharge in the record it appears that the proceedings in bankruptcy were commenced in the United States District Court for the Southern District of Florida well after the New York judgments were rendered.
A party moving for a summary judgment has the burden of establishing the non-existence of a triable issue of fact, and the burden of proving the existence
The plaintiff argues in his brief that the New York judgments were based upon fraud and were, therefore, not discharged under Section 17(a) (4) of the Bankruptcy Act (U.S.Code, Section 35) ,
The summary judgment is affirmed.
Affirmed.
. Section 17(a) of tlie Bankruptcy Act provides as follows: “Debts not affected by a discharge, (a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (4) were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity; * *