Eastland Inv. Co. v. Baker
| Decision Date | 22 March 1977 |
| Docket Number | Nos. 76-228 and 76-307,s. 76-228 and 76-307 |
| Parties | EASTLAND INVESTMENT COMPANY et al., Appellants, v. Thompson S. BAKER et al., Appellees. |
| Court | Florida District Court of Appeals |
Richard F. Hayes, Coral Gables, for appellants.
Julian H. Kreeger, Miami, for appellees.
Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
Appellants, defendants below, bring this consolidated appeal from two judgments of the trial court, to-wit: a partial summary judgment and a final judgment of foreclosure.
The only question presented for our determination is whether there remained genuine issues of material fact left unresolved, precluding the entrance of summary judgment and subsequent final judgment and foreclosure.
Briefly stated, the facts are as follows: Appellees, trustees of Barnett Mortgage Trust, instituted suit to foreclose upon a mortgage and note executed by appellant Eastland Investment Company and assumed by appellant Palmetto Associates, Ltd. Appellants filed an answer raising the affirmative defenses of usury and negligent disbursements of construction loan funds.
At summary judgment hearing, it was uncontroverted that the principle and interest due on the loans had not been paid, the construction project had been halted and taxes were in arrears. It was also uncontradicted that, pursuant to the loan agreement, appellants had undertaken the responsibility of being their own supervising architect and had the duty to insure the quality of workmanship at the construction project before certifying draw requests to appellee for additional disbursements of the construction loan.
Appellants filed affidavits in opposition to summary judgment based upon their aforementioned affirmative defenses. The trial judge was of the opinion that the affidavits and affirmative defenses of appellees were insufficient to preclude entrance of summary judgment. We agree with the trial judge and affirm.
In light of the terms of the construction loan agreement which specified that appellants would insure that the project was completed timely and in accordance with specifications, we find no merit in appellants' barren allegation that appellees were negligent in not inspecting the construction site before disbursing funds in reliance upon appellants' certification of draw requests. Cf. Rice v. First Federal Savings and Loan Association of Lake County, 207 So.2d 22 (...
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Leviton v. Philly Steak-Out, Inc.
...780, 783 (Fla.1965); James v. Naumann, 464 So.2d 1260, 1261 (Fla. 2d DCA), rev. denied, 476 So.2d 674 (Fla.1985); Eastland Inv. Co. v. Baker, 344 So.2d 882, 883 (Fla. 3d DCA), appeal dismissed, 354 So.2d 980 Third, the remainder of the points raised on appeal have no merit and require no di......
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Illescas v. Brent Edward Baris, Esquire & Brent E. Baris, P.A., 4D15-4781
...that the note was usurious without any calculations is insufficient to raise an issue of material fact. Eastland Inv. Co. v. Baker, 344 So. 2d 882 (Fla. 3d DCA 1977). Affirmed.WARNER and GROSS, JJ., and SINGHAL, RAAG, Associate Judge, concur.* * * Not final until disposition of timely filed......