BERNARD SAMUELS, APPELLANT,
v.
MAGNUM REALTY CORPORATION, A TEXAS CORPORATION, APPELLEE
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In a commercial lease dispute, the appellate court affirmed summary judgment on liability for breach but reversed and remanded due to insufficient proof of damages and improper award of attorney's fees without an adversary hearing. The court found genuine issues of material fact regarding the amount of damages recoverable, particularly concerning additional rental income under the new lease and remodeling costs.
The court affirmed summary judgment on liability but reversed the judgment on damages and attorney's fees. Summary judgment was inappropriate on damages because Magnum Realty's affidavit failed to account for additional rental income under the new lease and lacked sufficient particulars regarding remodeling costs. The attorney's fees award was improper because it was entered without affording Samuels an opportunity for an adversary proceeding.
[1] Summary judgment is inappropriate when a genuine issue of material fact exists regarding the amount of damages recoverable, even if liability is established.
[2] An affidavit supporting a motion for summary judgment must provide sufficient particulars to establish the absence of a genuine issue of material fact regarding damages.
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Join FLexlaw to unlock all legal intelligence“Although appellee's affidavit claims loss of 'base rent' in the amount of $1,668.23 ($2,625.00 reduced to present value) for the term of the lease, the affidavit fails to take account of the fact that additional rental (5% of gross sales in excess of $850,000.00 per year) is payable under the terms of the new lease.”
Establishes that the damages calculation was incomplete because it ignored contingent rental income, creating a genuine issue of material fact precluding summary judgment.
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Join FLexlaw to unlock all legal intelligenceBernard Samuels breached a lease agreement with Magnum Realty Corporation. Magnum Realty subsequently leased the premises to Strawberry Fields, Inc. u…
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PER CURIAM.
We affirm the summary judgment entered against appellant, Bernard Samu-els, insofar as it determines liability for breach of the lease agreement with appel-lee.
However, there appears to be a genuine issue as to the amount of damages, if any, recoverable as loss of rentals for the period covered by the lease with the new tenant, Strawberry Fields, Inc. Although appellee’s affidavit claims loss of “base rent” in the amount of $1,668.23 ($2,625.00 reduced to present value) for the term of the lease, the affidavit fails to take account of the fact that additional rental (5% of gross sales in excess of $850,000.00 per year) is payable under the terms of the new lease.
Thus, despite the absence of any counter affidavit by appellant, appellee’s proof fails to establish the absence of a genuine issue as to the damages recoverable. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). Appellant also contends, and we agree, that appellee’s affidavit that it expended “approximately $3,000.00” to remodel the premises for the new tenant, without any supporting particulars, is inconclusive, so as to cast doubt upon its sufficiency under Rule 1.510(e), Florida Rules of Civil Procedure, which requires that affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein .... ”
We find reversible error also in the trial court’s entry of a judgment for attorney’s fees without affording appellant an adversary proceeding in which to contest the amount of the fee award. Siciliano v. Hunerberg, 135 So. 2d 750 (Fla. 2nd DCA 1961); Crystal Properties, Inc. v. Florida Industrial Construction Company, Inc., 350 So. 2d 362 (Fla. 2nd DCA 1977).
Reversible error is not presented by appellant’s remaining point, relating to appellee’s failure to serve the affidavit in support of its motion for summary judgment at least twenty days prior to the hearing on the motion as required by Rule 1.510, Florida Rules of Civil Procedure, since this procedural error was not timely raised in the trial court, and appellant has not asserted a due process violation. Dubowitz v. Century Village East, Inc., 385 So. 2d 1116 (Fla. 4th DCA 1980); Humphrys v. Jarrell, 104 So. 2d 404 (Fla. 2nd DCA 1958). Cf. Heritage Casket and Vault Ind., Inc. v. Sunshine Bank, 428 So. 2d 341 (Fla. 1st DCA 1983). REVERSED and REMANDED for further proceedings consistent herewith.
BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wong v. Crown Equip. Corp. & Life Sys., Inc., 676 So. 2d 981 (Fla. 3d DCA 1996)…ved any procedural irregularity in the motion for summary judgment. See, e.g., Ultimate Corp. v. CG Data Corp., 575 So. 2d 1338 (Fla. 3d DCA 1991); Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905 (Fla. 3d DCA 1988); Samuels v. Magnum Realty Corp., 431 So. 2d 241 (Fla. 1st DCA 1983); Burns v. Consolidated Am. Ins. Co., 359 So. 2d 1203, 1206 (Fla. 3d DCA 1978); Fuller v. General Motors Corp., 353 So. 2d 1236 (Fla. 3d DCA), cert. denied, 361 So. 2d 832 (Fla.1978); Bartlett Constr., Inc. v. Coastal Plains, Inc.…
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A.L. Williams v. Salem Free Will Baptist Church, 784 So. 2d 1232 (Fla. 1st DCA 2001)…ctment, the claim for betterment would remain. A procedural error not timely raised in the trial court is waived unless the party asserting the error can demonstrate that such a waiver would be a denial of due process. See Samuels v. Magnum Realty, 431 So. 2d 241, 242 (Fla. 1st DCA 1983); see also E.J. Associates, Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (“ ‘Procedural irregularities to which no objection is made are waived.’ ”) (quoting Allstate v. Gillespie, 455 S…
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Foster v. Weber, 578 So. 2d 857 (Fla. 5th DCA 1991)…transaction was 33.8% per annum — well above the prohibited rate set by chapter 687. With all due apologies to the majority, I fail to see how Spiwak v. General Real Estate Ltd,., 546 So. 2d 81 (Fla. 3d DCA 1989) and Samuels v. Magnum Realty Corp., 431 So. 2d 241 (Fla. 1st DCA 1983) are relevant to this case. Spiwak did not involve an affidavit “too conclusory” to defend against a summary judgment. Rather, it dealt with the insufficiency of a party’s proof of damages via an affidavit after default, and the u…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Humphrys v. Jarrell, 104 So. 2d 404 (Fla. 2d DCA 1958)
- Siciliano v. Hunerberg, 135 So. 2d 750 (Fla. 2d DCA 1961)
- Heritage Casket & Vault IND., Inc. v. Sunshine Bank, 428 So. 2d 341 (Fla. 1st DCA 1983)
- Dubowitz v. Century Vill. E., Inc., 385 So. 2d 1116 (Fla. 4th DCA 1980)
- Jones v. State, 350 So. 2d 362 (Fla. 2d DCA 1977)