Carter v. Cessna Finance Corp.
| Decision Date | 03 December 1986 |
| Docket Number | No. 85-2125,85-2125 |
| Citation | 498 So.2d 1319,11 Fla. L. Weekly 2520 |
| Parties | 11 Fla. L. Weekly 2520, 3 UCC Rep.Serv.2d 414 J.R. CARTER, Appellant, v. CESSNA FINANCE CORPORATION, Paul C. Murphy and Cashman Development Corp., Appellees. |
| Court | Florida District Court of Appeals |
Nancy G. Daniel and Mark V. Silverio of Law Offices of Mark V. Silverio, Miami, for appellant.
Adrienne F. Promoff of Stinson, Lyons & Schuette, P.A., Miami, for appellee-Cessna Finance Corp.
The summary final judgment appealed consists of a deficiency judgment following forced sale of a repossessed aircraft. The genuine issue of material fact asserted by appellant is whether the sale was conducted in a commercially reasonable manner. In essence, appellant, Carter, complains that the letter advising him of the impending sale did not disclose the location of the aircraft, thus precluding exercise of his right of inspection. In addition, an untimely filed affidavit, apparently considered by the trial court and therefore appropriate for our consideration, alleges that parts of the aircraft were lost or stolen while in the possession of appellee, and for this and other reasons the fair market value of the aircraft was reduced.
We find no provision of the Uniform Commercial Code and have been alerted to no rule of the law merchant requiring a creditor in possession to afford a right of inspection to a debtor prior to forced sale of collateral. Common sense, however, compels the conclusion that if Carter had made any effort whatsoever to inspect the aircraft in order to ascertain its condition and value at the time of sale, and that effort had been frustrated by the creditor, the result here would be different. A creditor who repossesses property is responsible for maintaining it in its then existing condition, and where it is sold after damage or deterioration has occurred, the sale cannot be deemed commercially reasonable. See Fla. First National Bank v. Martin, 449 So.2d 861 (Fla. 1st DCA 1984), overruled in part on other grounds, 482 So.2d 1362 (Fla.1986). Refusal by the creditor to permit inspection upon reasonable demand would preclude a finding of a commercially reasonable sale. But the record in the present case discloses no hint of any effort by Carter to inspect the aircraft. We therefore find no refusal to permit inspection.
The question remains whether appellant has otherwise demonstrated the existence of a genuine issue of material fact. Appellant's affidavit states that based upon his "personal knowledge" the aircraft was damaged and allowed to deteriorate while in Cessna's possession. He does not, however, indicate the factual basis for this knowledge. Rule 1.510(e), Florida Rules of Civil Procedure, provides that: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." As the 1967 Author's Comment to the rule explains, "[t]he requirement that [the affidavit] show affirmatively that the affiant is competent to testify to the matters stated therein is not satisfied by the statement that he has personal knowledge; there should be stated in detail the facts showing that he has personal knowledge." In short, a party does not create a fact question merely by placing his assertions in affidavit form.
An example of this principle is found in Stolzenberg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. 3d DCA 1983). Plaintiff, who was employed by a caterer, slipped and fell while working on defendant's premises. The issue in the case was whether defendant had totally surrendered possession and control of the premises to plaintiff's employer, in which case defendant would not be liable for her injuries. In opposition to defendant's motion for summary judgment, plaintiff submitted...
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