Conesco Industries, Ltd. v. Southern Standard Builders, Inc.

District Court of Appeal of Florida

Conesco Industries, Ltd. v. Southern Standard Builders, Inc.

489 So. 2d 875, 11 Fla. L. Weekly 1324, 1986 Fla. App. LEXIS 8264

District Court of Appeal of Florida·Decided June 11, 1986·No. No. 85-1253·Published·Cited by 1 cases

Opinion

GUNTHER, Judge.

Conesco Industries (“Conesco”) appeals from an adverse summary judgment entered in favor of Haynes and Mouw, Inc. (“Haynes”). We reverse.

It is well settled that a court may only enter a summary judgment where there is a complete absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). In this case, there is a genuine issue of material fact as to whether Haynes waived its rights or subsequently modified the agreement Haynes had with Southern to pay the debts of Southern.

We conclude that the summary judgment granted Haynes against Conesco was improper because Haynes failed to demonstrate the complete absence of genuine issues of material fact. Cf. Walter v. Mirabella, 367 So.2d 704 (Fla. 2d DCA 1979) (summary judgment in favor of the appel-lee/seller on the issue of waiver improper despite appellant/purchaser’s apparent failure to comply with the terms on the face of the contract).

REVERSED AND REMANDED.

WALDEN and STONE, JJ., concur.

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GUNTHER, Judge.

Conesco Industries (“Conesco”) appeals from an adverse summary judgment entered in favor of Haynes and Mouw, Inc. (“Haynes”). We reverse.

It is well settled that a court may only enter a summary judgment where there is a complete absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). In this case, there is a genuine issue of material fact as to whether Haynes waived its rights or subsequently modified the agreement Haynes had with Southern to pay the debts of Southern.

We conclude that the summary judgment granted Haynes against Conesco was improper because Haynes failed to demonstrate the complete absence of genuine issues of material fact. Cf. Walter v. Mirabella, 367 So.2d 704 (Fla. 2d DCA 1979) (summary judgment in favor of the appel-lee/seller on the issue of waiver improper despite appellant/purchaser’s apparent failure to comply with the terms on the face of the contract).

REVERSED AND REMANDED.

WALDEN and STONE, JJ., concur.

Conesco Industries, Ltd. v. Southern Standard Builders, Inc., 489 So. 2d 875, 11 Fla. L. Weekly 1324, 1986 Fla. App. LEXIS 8264 (Fla. Ct. App. 1986).

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Opinion

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