Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC

• Decision Date: 21 December 2011
• Docket Number: No. 2D10–6014.,2D10–6014.
• Citation: 75 So.3d 865
• Parties: LAND DEVELOPMENT SERVICES, INC., a Florida corporation, Appellant, v. GULF VIEW TOWNHOMES, LLC, a Florida limited liability company; and Kathy Morgan, Appellees.
• Court: Florida District Court of Appeals

75 So.3d 865

LAND DEVELOPMENT SERVICES, INC., a Florida corporation, Appellant,
v.
GULF VIEW TOWNHOMES, LLC, a Florida limited liability company; and Kathy Morgan, Appellees.

No. 2D10–6014.

District Court of Appeal of Florida, Second District.

Dec. 21, 2011.

[75 So.3d 866]

David A. Burt of Knott, Consoer, Ebelini, Hart & Swett, P.A., Fort Myers, for Appellant.

Stanley A. Bunner, Jr., of Salvatori, Wood & Buckel, P.L., Naples, for Appellee Gulf View Townhomes.

No appearance for Appellee Kathy Morgan.VILLANTI, Judge.

Gulf View Townhomes, LLC, filed a legally insufficient affidavit in support of its motion for summary judgment. Nevertheless, the trial court granted the motion and included in the final judgment relief that Gulf View neither sought in its motion nor requested at the summary judgment hearing. For both of these reasons, entry of the final summary judgment against Land Development, Inc., was improper. Therefore, we reverse.

The somewhat limited record in this case shows that in June 2005 Gulf View bought Land Development's right to purchase certain vacant land in Naples under a purchase and sale agreement. Land Development took back a second mortgage on the property from Gulf View after closing, and it duly recorded a $300,000 promissory note from Gulf View and the mortgage that secured the note. Shortly thereafter, a dispute arose between the parties, with Gulf View contending that Land Development had misrepresented the number of townhouse units that could be constructed on the property. Due to these alleged

[75 So.3d 867]

misrepresentations, Gulf View stopped making the payments due under the promissory note.

In May 2006, Land Development filed a foreclosure action against Gulf View based on nonpayment of the note, and it attached copies of the note and mortgage to its complaint. In its answer, Gulf View admitted that it had executed the promissory note and mortgage and had delivered them to Land Development. Gulf View also admitted that the copies of the note and mortgage attached to Land Development's complaint were true and correct copies. But Gulf View denied that it had defaulted under the note, and it filed counterclaims against Land Development relating to the alleged misrepresentations concerning the development potential of the property.

The parties were subsequently referred to mediation, and they reached a full settlement at that mediation. The settlement required the parties to work together to obtain the approvals necessary to increase the number of units that could be constructed on the property. The parties agreed that if they were unsuccessful at getting the property re-permitted to allow for construction of more than forty-six units, the existing mortgage would be deemed cancelled and would be satisfied of record by Land Development. If however the parties were successful in getting the property re-permitted for more than forty-six units, Gulf View agreed to pay Land Development based on the number of additional units actually approved. In the settlement agreement, Gulf View again admitted that it had executed the original promissory note and mortgage and delivered them to Land Development. However, the parties agreed as part of the settlement to execute a modified mortgage and a modified promissory note to reflect their agreement concerning these contingent payments. They also agreed to jointly submit a stipulation to dismiss the foreclosure action and its counterclaims within fourteen days.

For reasons not apparent from our record, the parties never filed the anticipated stipulation for dismissal.¹ Instead, in August 2008, Land Development filed a motion to enforce the settlement agreement, followed by an amended motion to enforce. However, the trial court refused to enforce the settlement agreement within the foreclosure action. Instead, the court required the parties to file a separate proceeding to enforce the agreement, which they did.² Thus, the foreclosure case lay dormant while the parties litigated the separate enforcement action.

For reasons again not apparent from the record, Gulf View filed a motion for summary judgment in the foreclosure action on March 9, 2010. In its motion, Gulf View alleged that it was entitled to summary judgment because “[t]he original note is not in evidence in the instant action entitling Gulf View Townhomes, LLC, to judgment as a matter of law.” In support of its motion, Gulf View filed the affidavit of its manager, Jerald Radtke, in which he alleged that the original note was not “in evidence” and also that “Gulf View Townhomes, LLC, is not indebted to [Land Development] in any amount.” The affidavit made no attempt to reconcile the alleged lack of indebtedness with Gulf

[75 So.3d 868]

View's prior admission that it had executed the promissory note and delivered it to Land Development. Land Development did not file any counterevidence in opposition to Gulf View's motion.

At the hearing on the summary judgment motion, Gulf View argued that Land Development could not prevail in the foreclosure action without admitting the original note into evidence. It also argued that Land Development was required to come forward with the original note in response to the motion for summary judgment to establish that a genuine issue of material fact existed. According to Gulf View, since Land Development failed to file the original note in response to the motion, Gulf View was entitled to summary judgment in its favor as a matter of law.

In response, Land Development argued that it had no burden to come forward with the original note at this point in the litigation. Land Development admitted that it would have to produce the original note to prevail at trial, but it pointed out that it had not sought summary judgment and that the time for producing evidence had not yet arisen. It also argued that it had no burden to come forward with countervailing evidence in response to Gulf View's summary judgment motion until such time as Gulf View established that there were no genuine issues of material fact and that it was entitled to judgment in its favor as a matter of law. Since Gulf View had not established that Land Development could never produce the original note and had not offered any legally sufficient evidence to prove that it did not owe Land Development money under the promissory note, Land Development argued that Gulf View had not met its burden to prove that it was entitled to judgment in its favor as a matter of law. Moreover, because Gulf View had failed to prove the nonexistence of any genuine issue of material fact, Land Development argued that the burden had never shifted to it to produce any countervailing evidence.

Despite Land Development's arguments, the trial court...