J.D. CORP. D/B/A KWIK KOPY # 268, JACK APPLEBAUM AND DOTTIE APPLEBAUM, APPELLANTS,
v.
NORMAN WARTMAN D/B/A N.R.W. LEASING, APPELLEE
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This is an appeal by defendants J.D. Corp. d/b/a Kwik Kopy #268 and Jack and Dottie Applebaum from a summary judgment in favor of plaintiff Norman Wartman on a lease agreement for a copy machine. The court affirmed the summary judgment, finding no material disputes regarding the lease, payments, and amount owed, and rejecting defendants' affirmative defenses of fraud and warranty breach.
The court held that defendants' affirmative defenses of fraud in the inducement and breach of warranty were conclusively negated and there were no genuine issues of material fact regarding either defense, thereby affirming the summary judgment.
[1] A written lease agreement, coupled with admissions of making payments and then ceasing them, establishes a prima facie case for breach of the lease.
[2] A defendant's deposition testimony can conclusively negate affirmative defenses, precluding summary judgment for the defendant.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defendants, by written agreement, leased the subject copy machine from the plaintiff, (b) the defendants made payments on the lease from October 1984 to August 1985 and thereafter stopped making any further payments, and (c) the amount due and owing on the lease, including interest, was $7,135.36”
Establishes the undisputed facts supporting the plaintiff's breach of lease claim
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Join FLexlaw to unlock all legal intelligenceDefendants leased a copy machine from plaintiff under a written agreement. Defendants made lease payments from October 1984 through August 1985, then …
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PER CURIAM.
This is an appeal by the defendants J.D. Corp. d/b/a Kwik Kopy #268, Jack Ap-plebaum, and Dottie Applebaum from an adverse final summary judgment in an action for breach of a lease agreement involving a copy machine which the plaintiff Norman Wartman d/b/a N.R.W. Leasing had leased to the defendants. We affirm.
First, the plaintiff’s affidavit and defendants’ admissions establish, without material dispute, that (a) the defendants, by written agreement, leased the subject copy machine from the plaintiff, (b) the defendants made payments on the lease from October 1984 to August 1985 and thereafter stopped making any further payments, and (c) the amount due and owing on the lease, including interest, was $7,135.36.
Second, the defendants’ affirmative defenses were, in our view, conclusively negated by the defendant Jack Applebaum’s deposition testimony. According to this testimony, Jack Applebaum was well aware that the copy machine was a demonstrator, that a third party would be servicing the machine under the lease agreement, and that a service operator of the aforesaid third party scratched the drum of the copy machine causing the complained-of defects in the copies produced. There was no fraud in the inducement or breach of warranty and no genuine issue of material fact as to either defense. See Atlantic Nat’l Bank of Fla. v. Vest, 480 So. 2d 1328, 1332 (Fla. 2d DCA 1985), rev. denied, 491 So. 2d 281 (Fla.1986), rev. denied, 508 So. 2d 16 (Fla.1987); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311, 312-13 (Fla. 5th DCA 1985); Reflex, N.V. v. Umet Trust, 336 So. 2d 473 (Fla. 3d DCA 1976); see also Thursby v. Reynolds Metals Co., 466 So. 2d 245 (Fla. 1st DCA 1984), rev. denied, 476 So. 2d 676 (Fla.1985); Clark v. Boeing Co., 395 So. 2d 1226, 1229 (Fla. 3d DCA 1981); Power Ski of Fla., Inc. v. Allred Chem. Corp., 188 So. 2d 13, 14 (Fla. 3d DCA 1966).
Affirmed.
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- Atl. Nat'l Bank OF Fla. v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985)
- Reflex, N.V. v. The Umet Tr., 336 So. 2d 473 (Fla. 3d DCA 1976)
- Merrill v. Lelia C. Benton, 467 So. 2d 311 (Fla. 5th DCA 1985)
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- Power SKI OF Fla., Inc. v. Allied Chem. Corp., 188 So. 2d 13 (Fla. 3d DCA 1966)