Burley v. Mummery, 68--1029
| Decision Date | 06 May 1969 |
| Docket Number | No. 68--1029,68--1029 |
| Parties | Dwight B. BURLEY, Appellant, v. Ray MUMMERY, Appellee. |
| Court | Florida District Court of Appeals |
Hendricks & Hendricks and Ben E. Hendricks, Jr., Miami, for appellant.
Wepman & Wepman, Miami, for appellee.
Before PEARSON, HENDRY and SWANN, JJ.
Dwight B. Burley appeals from an adverse final summary judgment for the defendant below, Ray Mummery.
Dr. Burley sued Dr. Mummery and sought an accounting and damages. Dr. Mummery generally denied the pertinent allegations of the complaint and pled three affirmative defenses. Both parties moved for summary judgments on the ground that there were no genuine issues of material fact to be determined and that they were each entitled to summary judgments as a matter of law. The trial court found that there were no genuine issues of fact and rendered a final summary judgment for the defendant, Dr. Mummery.
The facts pertinent to this appeal are that the parties were associated together for a period of time in the general practice of medicine in the same premises. They each maintained a separate medical practice but entered into written agreements delineating their financial relationship and obligations.
Under the agreements, Dr. Burley was to maintain the lease on the premises, furniture, furnishings and fixtures and pay the rental thereon. Dr. Mummery was to pay to Dr. Burley a specified rental for the portion of the premises used exclusively by him. Dr. Mummery was to pay certain rentals to Dr. Burley as his share of the rental for the portion of the premises and equipment used jointly by the parties. In addition, the ordinary costs and expenses incurred in the operation of the medical offices were allocated between the two doctors. They agreed to share certain specified expenses. Certain other expenses which each party was to bear individually were specifically excluded from the shared expenses. Other provisions of the agreement provided for the maintenance of accurate records, the employment of an accountant by the parties, the rendering of statements, and the creation and maintenance of a joint checking account. Termination of the agreement and the rights and obligations of the parties in respect to such termination were provided for in paragraphs 12 through 15.
Paragraph 15 of the agreement provided:
'15. That the parties hereto recognize costs and expenses are incurred to create accounts receivable and in the event this agreement is terminated the accounts receivable of the Second Party (Dr. Mummery) shall be valued at the date of such termination as follows:
Accounts not older than three (3) months -- 100%
Accounts three (3) to six (6) months old -- 75%
Accounts six (6) to nine (9) months old -- 50%
Accounts nine (9) months old to twelve (12) months old -- 25%
Accounts older than twelve (12) months -- 0%
The Second Party (Dr. Mummery) shall pay to the First Party (Dr. Burley) the percentage of the value of such accounts receivable computed by determining the average percentage of expenses paid by the Second Party for six (6) months prior to the termination of this agreement. Such sums due by the Second Party shall be paid to the First Party in six (6) equal monthly installments beginning thirty (30) days after termination, without interests.'
The parties apparently had difficulties and the agreement was terminated. The affidavits in the record reflect that the certified public accountant who had previously represented both parties was given copies of their written agreement and at the 'request of the parties audited the joint checking account * * * and prepared monthly financial statements determining the percentage each would pay for the jointly used area and the mutual expenses.'
The first computation prepared and submitted to the parties by the C.P.A. indicated that Dr. Mummery owed Dr. Burley $1,164.40 and contained the following note: 'This report does not take into consideration accounts receivable.'
Dr. Mummery conferred with the C.P.A. and others and disputed certain items in that computation. In the affidavit of Dr. Mummery, he swears he advised these parties, prior to May 21, 1968, 'that he was not obligated for and did not intend to pay Dr. Burley any portion, percentage or sums of money related to accounts receivable and due to affiant.'
On May 21, 1968, the C.P.A. prepared and submitted to the parties a document which he entitled 'Amendment One of Computation of Charges and Credits Due D. B. Burley, M.D. from Ray Mummery, M.D. as of March 23, 1968.' This amendment showed a corrected balance due of $1,013.83 and reflected an adjustment of certain credits and debits between the doctors.
The affidavit of the C.P.A. reflects that this amended computation in the amount of $1,013.83 was shown to Dr Mummery, and that he agreed to pay this amount. The C.P.A. further swore that 'such statement settled monies to be paid by Dr. Mummery to Dr. Burley for mutual expenses,...
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