The Race, Inc. v. Lake & River Recreational Properties, Inc.
| Decision Date | 23 January 1991 |
| Docket Number | No. 90-1333,90-1333 |
| Citation | 573 So.2d 409,16 Fla. L. Weekly 297 |
| Court | Florida District Court of Appeals |
| Parties | 16 Fla. L. Weekly 297 THE RACE, INC., a Florida corporation, Appellant, v. LAKE & RIVER RECREATIONAL PROPERTIES, INC., etc., Appellee. |
Rita G. Hawkins, Panama City, for appellant.
Timothy F. Stanton, of Hutto, Nabors, Bodiford and Warner, Panama City, for appellee.
Appellant, The Race, Inc., appeals from a final summary judgment entered in an action for damages on a mortgage note. Because appellee, Lake & River Recreational Properties, Inc., failed to meet its burden in refuting certain affirmative defenses raised by appellant, we conclude that genuine issues of material fact remained unresolved, and therefore reverse the summary judgment and remand the case for further proceedings.
Appellee, the seller-mortgagee of certain real property which is the subject of this action, filed a two-count complaint, alleging that appellant, the purchaser-mortgagor, had defaulted in making payments pursuant to the terms of the note. Appellee sought damages caused by the breach under count one of the complaint, and foreclosure under count two. Appellant denied the default, and stated as an affirmative defense that appellee had promised as part of the sales agreement that an access road would be provided and maintained, that septic tank permits were available and would be obtained, that a common-area boat ramp would be installed, and that the property was usable for single-family dwellings, but that appellee had not performed the aforementioned items, therefore there had been a failure of consideration. Appellant also filed a two-count counterclaim seeking rescission and damages, which alleged part payment of $5,000 made to an officer of appellee.
Appellee subsequently moved for summary judgment on count one of the complaint. In support of that motion, appellee submitted its president's affidavit which asserted the making of the promissory note and appellant's alleged default thereunder. In opposition thereto, appellant submitted an affidavit which reasserted the affirmative defenses of lack of consideration and part payment. The hearing on the motion was held via telephone conference call, for which no record exists. Letter memoranda expressing the parties' respective positions were thereafter submitted. The court, without expressing its reasoning, then entered a final summary judgment in favor of appellee.
It is well established that in order for a plaintiff to obtain a summary judgment when the defendant has asserted affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Howdeshell v. First Nat'l Bank of Clearwater, 369 So.2d 432, 433 (Fla. 2d DCA 1979). Accord Proprietors Ins. Co. v. Siegel, 410 So.2d 993, 995 (Fla. 3d DCA 1982). Thus, summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record. Pandol Bros. v. NCNB Nat'l Bank of Fla., 450 So.2d 592, 594 (Fla. 4th DCA 1984). In the instant case, neither appellee's affidavit submitted in support of its motion, nor its letter memorandum submitted following the hearing conclusively refute appellant's affirmative defenses of lack of consideration and part payment.
In support of the final summary judgment, appellee argues that appellant's pleadings and affidavits are legally insufficient to create a genuine issue of fact, because appellant's affidavit had alleged oral representations not found in any of the writings, which altered the terms of the note, contrary to the parol evidence rule. In response to appellant's affidavit specifically reciting that payments had been made to an officer of appellee corporation, appellee contends that such averments are legally insufficient to create a genuine issue of material fact because the mortgage note clearly provided a particular place for payment, and appellant's affidavit showed payment was made at a different place. Therefore, extrinsic agreement as to the mode of payment is ineffective when the parties have expressly dealt with the mode of...
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...of a subsequent agreement that modifies a previous written agreement between the parties. The Race, Inc. v. Lake & River Recreational Properties, Inc., 573 So.2d 409, 410-11 (Fla. 1st DCA 1991); Linear Corp. v. Standard Hardware Co., 423 So.2d 966 (Fla. 1st DCA For example, in Weiss v. Keys......
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...as will be discussed in greater detail below, no issue in the brief addresses this. Cf. The Race, Inc. v. Lake & River Recreational Properties, Inc., 573 So.2d 409 (Fla. 1st DCA 1991) (admission of a subsequent oral agreement between lender and borrower would not be barred where a borrower ......
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...date was enforceable as it was not required to be in writing by statute or terms of contract); The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410–11 (Fla. 1st DCA 1991). In these two scenarios, no legislatively imposed public policy mandates that the modification b......
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Colon v. JP Morgan Chase Bank, NA
...See Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (quoting The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409 (Fla. 1st DCA 1991) ). Initially, we reject Bank's argument that Colon's affirmative defense was insufficiently pleaded. Florida Rule of Civil Pr......