ERNIE LETIZIANO, MAIN EVENTS SPORTS PRESENTATION, A FLORIDA CORPORATION, ALAN SCHIABLE, APPELLANTS,
v.
LAKE LYTAL, JR., TRUSTEE, LARRY MAHANEY, DONALD ROBERTS, INDIVIDUALLY, AND ALAN MILLER, AS TRUSTEE, APPELLEES
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The court held that the ambiguity in the contract regarding the eighty thousand dollar sum requires a trial to determine the parties' intent.
Appellants agreed to underwrite a letter of credit for $275,000 in exchange for an additional $80,000. Appellants refused to pay, claiming the $80,000…
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LETTS, Chief Judge.
This is an appeal from a final summary judgment construing provisions in a written contract. We reverse.
In order to secure a two hundred and seventy-five thousand dollar letter of credit, a written contract was prepared by the appellees’ attorney which provided that the appellants would in effect underwrite that amount in return for an “additional sum of eighty thousand dollars.” The appellants, who were perfectly willing to pay the eighty thousand dollars no matter what its label, ultimately and predictably refused to pay it contending that it constituted a usurious loan. An action was then brought to determine the parties’ contractual rights and the appellees moved for a summary judgment requesting the court to agree that the terms of the written contract contemplated a risk venture of eighty thousand dollars not a loan. The trial court decided that the agreement did indeed contemplate a risk venture and entered a judgment in favor of the appellees for three hundred and fifty-five thousand dollars.
We have reviewed the contract in question and conclude that there is ambiguity about whether the sum of eighty thousand dollars constituted interest, a fee or a profit return as a result of “risk venture.” Where the terms of a contract are ambiguous and cast doubt upon the parties’ intent, this intent must be determined by the trier of fact upon a trial and is not a matter to be disposed of by summary judgment. Bankers Ins. Service Corp. v. Southeastern Home Mtg. Co., 363 So. 2d 401 (Fla. 4th DCA 1978); Griffin Builders Supply, Inc. v. Jones, 384 So. 2d 265 (Fla. 2d DCA 1980).
REVERSED AND REMANDED IN ACCORDANCE HEREWITH.
DOWNEY and GLICKSTEIN, JJ., concur.
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Citator
Cited By
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Eligio Barrios & Goldstone Co., N.V. v. Duran, 496 So. 2d 239 (Fla. 3d DCA 1986)…1 (Fla. 3d DCA 1978). There is also an issue of fact as to the intention of the parties in the execution of an agreement to which the appellee is not a party. Milford v. Metropolitan Dade County, 430 So. 2d 951 (Fla.3d DCA 1983); Letiziano v. Lytal, 427 So. 2d 321, 324 (Fla. 4th DCA 1983); Consolo v. A.M.K. Corporation, 344 So. 2d 1285 (Fla. 3d DCA 1977). The issue of fraud generally should not be disposed of by summary judgment. Levey v. Getelman, 408 So. 2d 663 (Fla. 3d DCA 1981); Nessim v. DeLoache, 384 So…
Authorities Cited
- Griffin Builders Supply, Inc. v. Jones, 384 So. 2d 265 (Fla. 2d DCA 1980)
- Bankers Ins. Serv. Corp. v. Se. Home Mortg. Co., 363 So. 2d 401 (Fla. 4th DCA 1978)