Parker v. Dinsmore Co., AS-421
| Decision Date | 29 December 1983 |
| Docket Number | No. AS-421,AS-421 |
| Citation | 443 So.2d 356 |
| Parties | Eugene J. PARKER and Betty M. Parker, his wife, Appellants, v. The DINSMORE COMPANY, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
Robert J. Winicki of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
J.F. Leonard, Jacksonville, and J.W. Harrell of Harrell & Perrine, Jacksonville, for appellee.
Appellants, Eugene J. Parker and his wife, Betty M. Parker, appeal from a summary final judgment of foreclosure, contending that issues of material fact remain in dispute which should have precluded summary disposition of this case. We agree and reverse.
The record discloses that the Parkers, facing foreclosure of a Farmers Federal Credit Union (FFCU) mortgage on their homestead property in 1977, agreed to sell the property to Weiss, a real estate broker. The sales agreement provided that Weiss would assume the FFCU mortgage. When FFCU refused to agree to such an assumption, Weiss attempted to secure alternative financing. The Parkers, still facing imminent foreclosure, sought the services of attorney J.W. Harrell. Harrell, a major shareholder and officer in the Dinsmore Company, 1 arranged for the Parkers to mortgage their property to Dinsmore in an attempt to stave off the FFCU foreclosure. Having thus obtained other financing, the Parkers were no longer interested in selling, when Weiss, himself having secured financing, insisted that they perform under the sales agreement. Weiss then sought specific performance of that agreement and prevailed at both the trial and appellate levels. See Parker v. Weiss, 404 So.2d 820 (Fla. 1st DCA 1981).
Throughout that litigation, which finally terminated when the Florida Supreme Court declined to review the case on February 24, 1982, Harrell had at all times represented the Parkers in their efforts to keep their home. Only four months later, and before Weiss was able to close on the property, Harrell, then representing Dinsmore, filed a complaint for foreclosure of the mortgage held by Dinsmore on the Parkers' property. The Parkers answered, affirmatively defending, admitting that they had ceased making payments on the Dinsmore mortgage in May of 1979, but had done so on the advice of Harrell who, then acting as their attorney, allegedly had told them during the pendency of the appeal from the judgment entered in favor of Weiss that if Weiss prevailed on appeal he would have an absolute right to the property. They represented that they were ready and able to cure the default as soon as it was established that Weiss, who they alleged had breached the sales agreement by not closing, had no interest in the property. Finally, they asserted that Dinsmore, due to the actions of its agent, Harrell, had waived its right to accelerate the mortgage and should therefore be estopped from doing so.
Dinsmore subsequently moved for summary judgment of foreclosure, offering affidavits executed by Harrell and by the secretary of Dinsmore which set out the amounts owing on the mortgage. In opposition to the motion for summary judgment, Parker presented an affidavit in which he expanded on the allegations raised in his affirmative defense, stating that Harrell, who had represented him and his wife from December 13, 1977 through April 10, 1982, had failed to disclose to the Parkers his personal and financial interests in Dinsmore, and that as Harrell had also represented Dinsmore's legal interests, a conflict of interest resulted from these dual representations. Additionally, Parker asserted that Harrell had advised them to enter into the mortgage with Dinsmore, knowing that they had already agreed to sell to Weiss; that Harrell was acting as an agent for Dinsmore, and that Dinsmore should therefore be estopped from foreclosing the mortgage, or be found to have waived its right to do so. Dinsmore offered no affidavits to counter the allegations made by Parker and, after an unreported hearing, the trial court granted Dinsmore's motion for summary judgment of foreclosure. The Parkers' property was ordered sold, and, despite the pendency of a timely motion for rehearing filed by the Parkers' alleging newly discovered evidence relating to Harrell's corporate and financial relationship with Dinsmore, the property was sold to Dinsmore on February 28, 1983. As the record does not disclose that all genuine issues of material fact have been resolved, we agree that the summary judgment must be reversed.
It has long been recognized that "[u]pon motion for summary judgment it is the movant's burden to demonstrate, by admissible evidence, the nonexistence of any genuine issue of material fact." Arlen Realty, Inc. v. Penn Mutual Life Insurance Company, 386 So.2d 886 (Fla. 1st DCA 1980) (e.s.). When, as here, the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to "either disprove [those] affirmative defenses or establish...
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