National Exhibition Co. v. Ball, 2441

• Decision Date: 30 March 1962
• Docket Number: No. 2441,2441
• Citation: 139 So.2d 489
• Parties: The NATIONAL EXHIBITION COMPANY, Appellant, v. Ben BALL, as Trustee, Appellee.
• Court: Florida District Court of Appeals

Page 489

139 So.2d 489

The NATIONAL EXHIBITION COMPANY, Appellant, v. Ben BALL, as Trustee, Appellee.

No. 2441.

District Court of Appeal of Florida, Second District.

March 30, 1962.

Mack N. Cleveland, Jr., Harold F. Johnson, Sanford, for appellant.

H. Russell Troutman, Akerman, Turnbull, Senterfitt & Eidson, Orlando, for appellee.

ALLEN, Acting Chief Judge.

This is an appeal from a summary final decree entered in favor of plaintiff-appellee. Therein the lower court determined that there was no issue of material fact and that plaintiff was entitled to have an equitable vendee's lien declared on certain property to secure the return of a deposit plaintiff had put down toward the purchase of said property.

On September 13, 1960, plaintiff contracted to purchase the Mayfair Inn in Sanford, Florida, from defendant-appellant. Plaintiff deposited $30,000 with an escrow, Florida State Bank of Sanford, as a deposit on account for the purchase of the real property in question. The purchase contract provided that defendant would furnish on or before September 26, 1960, an abstract or a commitment of title insurance showing its title to be good and marketable. Said marketable title clause in the contract further provided:

'* * * but in the event that the title shall not be found good and marketable, the seller agrees to use reasonable diligence to make the said title good and marketable, and shall have a reasonable time to do so, and if after reasonable diligence on his part said title shall not be made good and marketable within a reasonable time, the seller shall return the * * *.' (Emphasis supplied.)

In short, the seller was to return the deposit. A copy of a letter appearing at page 28 of appellant's appendix shows that plaintiff deemed the contract breached and sought its termination and return of the deposit on October 12, 1960.

The contract was never fulfilled because plaintiff contended that defendant breached its terms by failing to furnish on or before September 26, 1960, an abstract or a commitment of title insurance showing good and marketable title.

Plaintiff filed suit in equity against defendant requesting the court to declare defendant in default under the contract, declare an equitable lien on the property in question in favor of plaintiff to the extent of the deposit money paid by plaintiff, and, upon the failure of said deposit money being returned, order the property sold to effect the return of the deposit. Defendant's failure to furnish an abstract or title insurance commitment on September 26, 1960, is the alleged breach of contract on which plaintiff based his demand for return of the deposit money or in the alternative, foreclosure of his vendee's lien.

Defendant answered, admitting that it did not furnish an abstract or commitment of title insurance. Defendant also affirmatively pleaded the defenses of waiver and estoppel and counterclaimed for damages.

Plaintiff moved for summary decree supported by the affidavits of plaintiff and Seymour J. Simon, an attorney who represented plaintiff in the real estate transaction at issue. Plaintiff's affidavit in effect reaffirmed the allegations in the complaint. Simon's affidavit also reaffirmed the complaint and in addition stated that plaintiff had not conducted himself in any manner which constituted a waiver of defendant's obligation to furnish an abstract or title insurance commitment on September 26, 1960.

In opposition to the motion for summary decree defendant produced the affidavits of John Krider, Edgar P. Feeley and Arthur J. Flynn. Krider's affidavit in essence stated that plaintiff had taken over the Mayfair Inn, the subject of the contract, and had announced publicly through press releases and otherwise that he was the new owner. Feeley's affidavit stated that he was attorney for and treasurer of defendant corporation; that during negotiations plaintiff was anxious to take over the property and appeared satisfied with the state of the title as represented during said negotiations; that plaintiff had had a heart attack and was known to be dissatisfied with the property and wanted a technicality to get out of the contract; that, upon receipt of the termination letter from plaintiff's attorney on October 12, 1960, affiant discussed the matter with plaintiff's attorney and thereafter furnished him an abstract in which affiant knew of no incurable effects; and that there has been no breach since the contract permits a reasonable time to furnish good and marketable title if not so furnished by September 26, 1960. Flynn's affidavit states essentially that subsequent to negotiations plaintiff conducted himself as the owner of Mayfair Inn.

The lower court granted plaintiff's motion for summary decree and entered a summary final decree from which defendant has instituted this appeal.

On appeal, defendant-appellant challenges the entry of the summary final decree and asserts that such was error in that there still exists in the cause a genuine issue of material fact as to the affirmative defenses of estoppel and waiver.

As indicated, the lower court had before it the affidavits and, in addition, the pleadings. We feel, that these documents, viewed as a whole, show an issue of fact remaining in the cause that cannot properly be disposed of on motion for summary decree. In this connection appellant has correctly stated the principle to be followed by the court: that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material facts. Tarkoff v. Schmunk, Fla.App.1959, 117 So.2d 442; Majeske v. Palm Beach Kennel Club, Fla.App.1959, 117 So.2d 531, cert. denied, Fla., 122 So.2d 408. We fell the appellee failed to carry this burden.

If a doubt exists as to the existence or non-existence of a material fact, such doubt must be resolved against the party moving for summary judgment. Manning v. Clark, Fla.1954, 71 So.2d 508; Baker v. Cox, Fla.App.1960, 120 So.2d 214, cert. denied, Fla., 122 So.2d 778.

In his brief the appellee urges that the affidavits of Krider, Feeley and Flynn produced by appellant in opposition to the motion for summary decree were insufficient to establish a waiver on the part of appellee of the condition in the contract to furnish an abstract, etc., on or before September 26, 1960. Under the rule enunciated above it was not incumbent upon appellant to do so. Appellant affirmatively alleged that appellee had waived the requirement to furnish an abstract, etc., by September 26, 1960, and is therefore estopped to set up the failure to do so as a breach of the agreement. In his affidavits in support of his motion for summary decree, appellee in effect produced no more than a mere denial of said defense. These affidavits contained no additional uncontroverted information which would demonstrate clearly the absence of any genuine issue of material fact on the question of plaintiff's alleged waiver of the condition to furnish an abstract, etc. The existence vel non of the alleged waiver was therefore still squarely at issue and by entering a summary decree in favor of plaintiff, the lower court in effect tried the case which was not within its office to do in ruling on a motion for summary decree. Whitehall Realty Corp. v. Manufacturers Trust Co., Fla.1955, 81 So.2d 475; Owens v. MacKenzie, Fla.App.1958, 103 So.2d 677; Ramagli Realty Co. v. Speier, Fla.App.1959, 110 So.2d 71; and Remington v. L. P. Gunson & Company, Fla.App.1961, 125 So.2d 885.

Since a genuine issue of material fact exists without reference to defendant-appellant's affidavits in opposition to the motion for summary decree, their...