HERBERT HALBACK, INC., ETC., APPELLANT,
v.
SOHRAB GERAMI, M.D., APPELLEE

Fla. 5th DCA | 1984-11-23
No. 83-1380
ORFINGER and SHARP, JJ., concur.
459 So. 2d 452 Florida District Court of Appeal, Fifth District (1984)

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Synopsis

Herbert Halback, Inc., a landscape architecture firm, appeals a summary judgment denying recovery for additional landscaping services allegedly performed for Dr. Gerami beyond those specified in their written contract. The court reversed, finding a genuine issue of material fact regarding whether Gerami requested or tacitly agreed to the additional work.


Holding

Summary judgment was improper because Halback's deposition and affidavit raised a genuine issue of material fact regarding whether Gerami requested or tacitly agreed to additional services. Gerami's affidavit containing only conclusory denials was insufficient to justify summary judgment in his favor when all evidence must be construed most favorably to the nonmoving party.


Headnotes

[1] A genuine issue of material fact exists when the nonmoving party's evidence, when construed most favorably, raises a question regarding the movant's entitlement to judgme…

[2] Summary judgment is inappropriate if any doubt remains as to the existence of a genuine issue of material fact.

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Key Quotes

“A summary judgment should not be granted unless, construing all the evidence most favorably to the nonmoving party, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.”

Establishes the controlling legal standard for summary judgment that must be applied by trial courts

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Facts & Procedural History

Gerami retained Halback to perform landscaping services under a written contract with a maximum fee of $5,000. Halback claimed that Gerami expressed a…

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Opinion of the Court
FRANK D. UPCHURCH, Jr., Judge.

FRANK D. UPCHURCH, Jr., Judge.

Herbert Halback, Inc., a landscape architecture firm, appeals from a final summary judgment denying recovery for landscaping services allegedly rendered to Dr. Sohrab Gerami. We reverse because there was a genuine issue of material fact regarding whether Gerami requested or tacitly agreed to the performance of additional services by Halback.

The record established that Gerami retained Halback to perform certain landscaping services. The written contract provided that the fee would not exceed $5,000. According to a deposition and affidavit submitted by Halback, Gerami expressed a desire for the firm to handle other aspects of the design not specified in the contract. Halback then sent Gerami a letter outlining the additional services which would be performed at the same rate as specified in the agreement. No written acceptance was received, but Halback contends that Gerami indicated that the work was to proceed and never objected to the work while it was being completed. Halback also claimed that Gerami originally agreed to pay the entire bill, but later changed his mind. In his affidavit, Gerami stated that he did not request that Halback perform any services over those specified in the written agreement.

A summary judgment should not be granted unless, construing all the evidence most favorably to the nonmoving party, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); O’Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982). If issues of fact exist and the slightest doubt remains, a summary judgment cannot be granted. And, of course, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. See; e.g., Allington Towers North, Inc. v. Teich, 345 So. 2d 745 (Fla. 4th DCA 1977).

Here, the deposition and affidavit submitted by Halback raise the question of whether Gerami requested or tacitly agreed to the performance of additional landscaping services. Gerami’s affidavit denying that he requested any additional services contained nothing more than mere conclusions or statements of ultimate fact which did not justify the entry of summary judgment in Gerami’s favor. See Lee-Booth, Inc. v. Fidelity and Deposit Co., 399 So. 2d 531 (Fla. 2d DCA 1981); Dean v. Gold Coast Theatres, Inc., 156 So. 2d 546 (Fla. 2d DCA 1963).

REVERSED and REMANDED for further proceedings.

ORFINGER and SHARP, JJ., concur.


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