KONRAD WALTHER, APPELLANT,
v.
SAL MIRABELLA AND PAMALINA MIRABELLA, APPELLEES
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The court held that summary judgment was improper because a material fact issue existed regarding waiver of the contract's deadline.
Plaintiff sued for specific performance of a real estate contract. The trial court entered summary judgment for the defendants, finding that contract …
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[*705] PER CURIAM.
Appellant/plaintiff Konrad Walther appeals the final summary judgment entered in favor of appellees/defendants Sal and Pamalina Mirabella in an action for specific performance of a written contract for the sale of real property. We reverse.
It is well settled, and it is not necessary to cite cases in support thereof, that summary judgment should not be granted if there is a genuine issue as to any material fact. In such instance summary judgment disposition is precluded as a matter of law. Fla.R.Civ.P. 1.510(c).
Without reciting the factual situation involved in this case, it is evident to us that it does not lend itself to summary judgment procedure. We are aware that it does appear from the face of the contract that all of its terms were not complied with. However, although we make no judgment as to the merits of appellant’s action, we agree with him that there is a material fact issue as to whether a waiver of the date by which the contract was to be signed was created by the conduct of the parties in this particular situation. Furthermore, we note that the Supreme Court of Florida has held that the question of waiver is usually a fact question. See, e. g., Stephenson v. Stephenson, 52 So. 2d 684 (Fla.1951).
Accordingly, the summary judgment entered by the trial court against the purchaser should be reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
HOBSON, A. C. J., and BOARDMAN and SCHEB, JJ., concur.
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Citator
Cited By
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Conesco Indus., Ltd. v. S. Standard Builders, Inc., 489 So. 2d 875 (Fla. 4th DCA 1986)…ad 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,…
Authorities Cited
- Stephenson v. Stephenson, 52 So.2d 684 (Fla. 1951)