RALPH PALMERTON, APPELLANT,
v.
JAMES B. EVANS AND SONYA ROBINETTE EVANS, HIS WIFE, APPELLEES
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The court reversed summary judgment for the buyer's recovery of a down payment on a construction contract, holding that the contractor's verified cross-complaint alleging a non-refundable payment term raised genuine issues of material fact precluding summary judgment.
Summary judgment for recovery of a down payment is improper when the contractor's verified cross-complaint raises genuine issues of material fact regarding whether the payment was non-refundable.
[1] A verified cross-complaint alleging a non-refundable payment term raises genuine issues of material fact that preclude summary judgment on a buyer's claim for recovery of…
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Join FLexlaw to unlock all legal intelligenceIn 1977, Palmerton signed a contract to construct six duplexes for the Evanses in Winter Haven and received a $10,000 down payment. In 1978, the Evans…
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OTT, Judge.
In 1977 appellant signed a contract prepared by appellees, in which he undertook to construct six duplexes for them in Winter Haven. Appellees paid him $10,000 upon execution of the agreement. In 1978 they filed this action to recover their money with interest, alleging that they had received nothing and that the contract was so vague and ambiguous as to be unenforceable. Appellant cross complained for damages incurred as a result of appellees’ refusal to honor their agreement after he had commenced construction of the duplexes. His duly verified cross-complaint included an allegation that appellees had agreed that the $10,000 down payment would be nonrefundable.
On appellees’ motion the court below entered summary judgment in their favor for $10,000, plus $1,500 interest and costs of suit.
We are of the opinion that the verified cross-complaint raised genuine issues of fact that could materially affect appellees’ right to recover their payment. Whether or not the contract could be specifically performed is not necessarily determinative of that question, particularly when appel-lees were primarily, at least, responsible for the inept drafting of that document. Under the circumstances, it was error to enter summary judgment.
The summary judgment is therefore reversed and the case remanded to the court below for further proceedings consistent herewith.
HOBSON, Acting C. J., and CAMPBELL, J., concur.