Ham v. Heintzelman's Ford, Inc.

• Decision Date: 10 December 1971
• Docket Number: No. 71--303,71--303
• Citation: 256 So.2d 264
• Parties: B. D. HAM and Estelle I. Ham, his wife, Appellants, v. HEINTZELMAN'S FORD, INC., Appellee.
• Court: Florida District Court of Appeals

Page 264

256 So.2d 264

B. D. HAM and Estelle I. Ham, his wife, Appellants, v. HEINTZELMAN'S FORD, INC., Appellee.

No. 71--303.

District Court of Appeal of Florida, Fourth District.

Dec. 10, 1971.

Rehearing Denied Jan. 25, 1972.

Marvin E. Newman, of Marvin E. Newman & Jon S. Rosenberg, Orlando, for appellants.

William L. Eagan, of Arnold, Matheny & Eagan, Orlando, for appellee.

MAGER, Judge.

Plaintiffs appeal from a final order granting summary judgment in favor of the defendant. Plaintiffs filed a complaint containing two counts. Count I seeks rescission of a contract for the sale and purchase of an automobile based upon alleged material misrepresentations on the part of the defendant and its agents; such alleged misrepresentations being that the defendant represented the said automobile to be a 'demonstrator' automobile never having been the subject of lease or rental. In support of their contention of this material misrepresentation plaintiffs attached a certified copy of a certificate of title issued by the Division of Motor Vehicles which contained the following notation thereon:

'This vehicle is or has previously been used as a long T lease'.

Count II of the complaint sought damages on the basis that the value of the vehicle was significantly lower than that which plaintiffs had bargained for and that plaintiffs had expended large sums of money to correct mechanical difficulties all of which plaintiffs claimed were the result of the vehicle having been a leased automobile rather than a demonstrator.

Defendant filed its answer contending that the complaint failed to state a cause of action in that the plaintiffs did not allege with particularity that the vehicle was in fact leased to any person or entity. Defendant's answer also denied that the vehicle in question had been a leased vehicle. Defendant additionally propounded interrogatories to the plaintiff which, among other things, sought to ascertain to whom and for how long a period the vehicle was leased. In response to these specifice requests the plaintiffs' answer was that 'they do not know'. Thereafter defendant moved for summary judgment on the basis that there was no genuine issue as to any material facts and that defendant was entitled to judgment as a matter of law. In support of its motion defendant filed an affidavit by one of its agents in which it was stated that the vehicle in question was used by the affiant as his personal 'demonstrator' automobile up until the time of sale to the plaintiffs and that it had never been leased or rented. One of the plaintiffs filed an affidavit in opposition to defendant's motion in which affiant alluded to certain statements made by defendant's agents or employees regarding the representation that the vehicle was a demonstrator, upon which representation plaintiff had relied and which representation plaintiff alleged to have been false. In support of the affiant's assertions regarding the alleged misrepresentations plaintiff again attached a copy of the certificate of title mentioned above.

Defendant's motion for summary judgment was granted and it is from this order that the instant appeal has ensued.

The basic contention of the plaintiffs is that the pleadings, affidavits and exhibits clearly reflect a genuine issue as to material facts so as to preclude the entry of a summary judgment. Defendant, however, contends that the affidavit of its agent contained direct and unequivocal statements based on personal knowledge that the vehicle was not a leased vehicle; and having presented evidence in support of the claimed nonexistence of material issue, it was entitled to summary judgment inasmuch as the plaintiff did not come forward with any competent admissible evidence controverting defendant's affidavit. The defendant also contends that plaintiff's affidavit did not reflect any direct evidence or personal knowledge that there had ever been any lease of the automobile and that plaintiffs' sole reliance was upon the 'hearsay notation on the title certificate'. In regard to this latter contention defendant asserts that plaintiff's 'reliance on the erroneous notation on the title certificate is reliance on a paper issue'.

Examination of the case law dealing with summary judgments reveals a plethora of judicial expression. In case after case reference is made to the general principle that a summary judgment may be entered where the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. However, it is in the application of this principle that difficulty has arisen because there is no rigid or magic formula available to determine the existence of a genuine issue of material fact. It is not unusual to find affirmative pronouncements indicating when summary judgment is applicable as well as corresponding negative declarations. For example, it has been stated that while the fundamental purpose of a summary is to relieve the litigants and the courts from the trial of unnecessary lawsuits, a summary judgment is not a substitute for a trial and caution should be exercised in foreclosing a litigant from the benefit of trial. Page v. Staley, Fla.App.1969, 226 So.2d 129. Further, where the controversy is purely one of law to be decided on undisputed facts summary judgment may be granted. However, a summary judgment should not be entered even where the evidence as to a material fact is Undisputed if there are conflicting inferences of fact reasonably deducible from that undisputed evidence. Herold v. Computer Components International, Inc., Fla.App.1971, 252 So.2d 576. From these illustrations we can see the difficulty facing the courts in disposing of cases at the summary judgment stage.

One particular area of difficulty which has led to the improvident entry of a summary judgment has been the failure of the courts to recognize the distinction tween the Existence of a genuine issue of material fact and the Adjudication of a material fact. The function of the court in passing on a motion for summary judgment is simply to determine whether a genuine issue Exists and whether such issue is material; it does not determine the issue. 30 Fla.Jur., Summary Judgment, § 10, p. 348. As was observed in Fechtmeyer v. Caribbean Keys, Fla.App.1960, 124 So.2d 521, at 524:

'In a proceeding for summary judgment the burden of proof is upon the party moving for summary judgment to show lack of a genuine issue of material fact. All doubts as to the existence of such fact must be resolved against the moving party. So it is that a summary proceeding may be utilized only as a vehicle for establishing whether there is a genuine issue of material fact to be determined, and the trial court may not try or determine factual issues in such proceeding. Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404. It is the function of the trial court when passing on a motion for summary judgment to ascertain if there exists a genuine issue of material fact Rather than to adjudicate the probative weight of the evidence as it pertains to disputed facts. Patty v. Food Fair Stores of Florida, Fla.App.1958, 101 So.2d 881.' (Emphasis added.)

See also Coquina Ridge Properties v. East West Company, Fourth District Court of Appeal, opinion filed November 12, 1971, 255 So.2d 279. In the last analysis, application of these principles will devolve upon the facts and circumstances of the particular case.

In the case sub judice, the two material fact issues necessitating determination are: (1) whether the automobile was the subject of a long-term lease and (2) whether any misrepresentations of material fact were made bearing upon the status of such vehicle. Obviously if the vehicle was not a leased vehicle but in fact a demonstrator then the cause would be moot and it would not be necessary to reach the question of defendant's alleged misrepresentation. If the vehicle was in fact the...