Kerber v. Chadan, Inc.

364 So. 2d 1264, 1978 Fla. App. LEXIS 16875

• Court: District Court of Appeal of Florida
• Decided: December 13, 1978
• Docket: No. 78-382
• Status: Published

Opinion

DAUKSCH, Judge.

In this mortgage foreclosure case the trial judge entered summary judgment for the mortgagors thereby sustaining their defense to the foreclosure.

The complaint sets out default by the mortgagors and otherwise alleges sufficient grounds for foreclosure. The defendants responded variously and ultimately set out a defense of equitable estoppel. There is a factual question to be resolved as to whether there was an equitable estoppel. For example, the defendants urge the plaintiffs, through one of the plaintiffs, agreed to an extension of time for payment of some ar-rearages. That plaintiff denies agreeing to the extension and the others say he was not speaking for them. Perhaps after trial the result will be the same but, as we have oft times said, if there are relevant factual issues remaining after full consideration of motions for summary judgment then the court cannot grant summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). See also Rinker Materials Corp. v. The Palmer First National Bank and Trust Company of Sarasota, 361 So.2d 156 (Fla.1978). The reversal of this summary judgment requires us to also reverse the cost judgment in favor of mortgagees.

REVERSED.

LETTS and BERANEK, JJ., concur.