Fox v. Perry, 79-945

• Decision Date: 08 April 1980
• Docket Number: No. 79-945,79-945
• Parties: Morris FOX and Jean Fox, his wife, Appellants, v. Phil PERRY and Therese Perry, his wife et al., Appellees.
• Court: Florida District Court of Appeals

Page 1251

382 So.2d 1251

Morris FOX and Jean Fox, his wife, Appellants, v. Phil PERRY and Therese Perry, his wife et al., Appellees.

No. 79-945.

District Court of Appeal of Florida, Third District.

April 8, 1980.

Rehearing Denied May 23, 1980.

Rash, Katzen & Kay and Howard I. Kay, South Miami, for appellants.

Buchbinder & Elegant and Ira M. Elegant, Miami, for appellees.

Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.

VANN, Associate Judge.

This appeal, arising out of a complaint seeking damages on a promissory note, comes to us from (1) an order of the Dade County Circuit Court granting a final summary judgment to the defendants and (2) an order (of another judge of that court) deferring a ruling on the plaintiffs' motion to amend their complaint. Because numerous, genuine issues of material fact yet remain, the final summary judgment must be reversed.

The plaintiffs (Morris and Jean Fox) had certain business dealings with the defendants (Phil and Therese Perry) and Harold and Lois Pomerantz ¹ mainly involving the Foxes' co-signing a $500,000.00 promissory note as an accommodation to the Perrys and the Pomerantzes, and the sale by the Foxes to the Perrys and Pomerantzes of some real property in Jacksonville, Florida. These dealings created an indebtedness of the Perrys and the Pomerantzes to the Foxes and resulted in a "May '76 Agreement," wherein three commitments were undertaken: (1) The deed to the Jacksonville property, held by the Perrys and the Pomerantzes, was to be delivered to an attorney (Eugene E. Stearnes) to be held in escrow for six months during which time the Perrys and Pomerantzes were to sell the property. If the property was not sold within the six-month period, the deed would then be turned over to the Foxes. (2) The Lo-Te Development Corporation (of which the Perrys and Pomerantzes were the sole stockholders) was to execute a promissory note with sufficient interest to protect the Foxes from all expenses, fees, costs, interest or the principal payments made in connection with the $500,000 note. (3) The Lo-Te Development Corporation was to execute to the Foxes an assignment of the proceeds from two lawsuits that the corporation then had pending in Fort Lauderdale, Florida.

Thereafter, in September 1978, the Foxes brought suit against the Perrys, not on the "May '76 Agreement," but on the basis of the debt arising out of the promissory note. The defendants were the first to introduce the "May '76 Agreement" into the action (through their answer and counterclaim), alleging that their performance thereunder was a complete defense to the Foxes' claim. Central to the position of the Foxes, however, is their contention that the Perrys and Pomerantzes failed to perform any of the three commitments in the "May '76 Agreement," thereby precluding the defendants from relying on the agreement as a defense.

Procedurally, this case has made somewhat of a "milk train" journey through the corridors of the Dade County Circuit Court, has undergone the judicial consideration of at least five circuit judges, including the chief judge of that court acting in his administrative capacity, and has culminated in the two orders here appealed. Because of our ultimate disposition of this appeal, we do not deem it necessary to discuss the various allegations of certain problems that have been drawn to our attention with regard to the multijudge treatment of this case.

Legally, we have been presented by the parties with contrary conclusions of law, based upon often divergent and overlapping renditions of fact. What has taken the parties nearly half of their respective briefs to discuss will not be repeated here. Some discussion is, however, necessary.

The basic premise of the Foxes' complaint is their claim of a personal indebtedness of the defendants growing out of a half million dollar promissory note. Defensively, the Perrys take the position that the "May '76 Agreement" precludes this claim because the matter of the promissory note is controlled by the provisions of the agreement, which the defendants have fully performed and, performance aside, because the agreement provides that the plaintiffs would look exclusively to the Lo-Te Development Corporation for any indebtedness arising out of the note; i. e., that the defendants (and the Pomerantzes) would not be personally liable. Also, there is the further, correlative contention that the Lo-Te Development Corporation was, therefore, an indispensable party to this action and, accordingly, should have been joined as a defendant. The plaintiffs reply that because their lawsuit was based on the promissory note and not on the "May '76 Agreement," the Lo-Te Development Corporation was not an indispensable party. Furthermore, the defendants argue that their performance under the agreement has been acknowledged by a "release" of Mr. Fox (in what was known as the "Colt Lanes Memorandum") where, in his own handwriting, Mr. Fox states: "All verbal agreements, if any, or agreement of May 1976 are (null) and void and the only agreement between P. and Lo-Te and M. F. is this agreement." The Foxes argue that the reference in the handwritten memorandum to ". . . the only agreement between . . ." the parties refers to the memorandum itself and not the "May '76 Agreement." These, and various other allegations and counter-allegations, comprise the tenor...