SUCHMAN CORPORATE PARK, INC., A FLORIDA CORPORATION, SHANE-SUCHMAN REAL ESTATE COMPANY, A FLORIDA CORPORATION, LAWRENCE E. SUCHMAN AND SAUL STEIN, APPELLANTS,
v.
SIDNEY H. GREENSTEIN, JEROME NEWMAN, AS TRUSTEE, SYBIL GREENSTEIN, MARVIN KIMMEL, AND HAROLD STEINER, APPELLEES
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Suchman Corporate Park appeals a summary judgment in favor of mortgagees Greenstein and others regarding interpretation of a mortgage release agreement. The Third District Court of Appeal reverses the summary judgment, finding genuine issues of material fact regarding the agreement's proper interpretation, and also reverses orders distributing funds from the registry and awarding attorney's fees to the mortgagees.
The summary judgment is reversed because genuine issues of material fact exist concerning the interpretation of the release agreement; the order permitting distribution of the registry deposit is reversed and the funds must be returned to the registry pending final resolution; and the attorney's fees award is reversed because the 'no personal liability' clause prevents such an award against the individual plaintiffs, and any future fees award must be limited to increasing the principal of a foreclosure judgment.
[1] A summary judgment is improper when genuine issues of material fact exist regarding the interpretation of a release agreement.
[2] A deposit made by mortgagors to secure the release of mortgaged property constitutes a tender that should be returned to the mortgagors if they do not ultimately prevail…
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Join FLexlaw to unlock all legal intelligence“The summary judgment for the mortgagee-appellees is reversed because genuine issues are presented concerning the proper interpretation of the release agreement in question.”
Establishes the primary holding that summary judgment was improper due to disputed factual issues regarding contract interpretation.
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Join FLexlaw to unlock all legal intelligenceAppellants Suchman Corporate Park and related entities were mortgagors who deposited funds into the court registry as tender to secure release of a de…
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SCHWARTZ, Chief Judge.
The summary judgment for the mortgagee-appellees is reversed because genuine issues are presented concerning the proper interpretation of the release agreement in question. Agricultural Alumni Seed Improvement Ass’n, Inc. v. Diaz, 432 So. 2d 788 (Fla. 3d DCA 1983). See Quayside Assocs., Ltd. v. Harbor Club Villas Condo. Ass’n, Inc., 419 So. 2d 678 (Fla. 3d DCA 1982); Hoffman v. Terry, 397 So. 2d 1184 (Fla. 3d DCA 1981); Mead v. Mead, 193 So. 2d 476 (Fla. 3d DCA 1967), cert. denied, 201 So. 2d 552 (Fla.1967).
The order permitting distribution to the mortgagees of the sum previously paid by the appellant-mortgagors into the registry of the court is also reversed with directions to require its repayment to the registry. Since the deposit represented a tender by the appellant-mortgagors to secure the release of a designated portion of the mortgaged property upon the payment of the amount they contend was due under the agreement, it should be paid to the mortgagees at the conclusion of the case only if the plaintiffs are ultimately successful in establishing their position. See Masser v. London Operating Co., 106 Fla. 474, 145 So. 72 (1932); Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932); 39 Fla.Jur.2d, Payment and Tender § 11 (1982).
If the plaintiffs lose, their offer will not have been accepted and the fund must therefore be returned to them.
Finally, the order awarding attorney’s fees to the appellees is likewise reversed, not only because of our previous rulings, but also because the underlying note and mortgage, which provide for these fees in the event of the mortgagees’ success, specifically state that these obligations are without recourse against the individual plaintiffs who have “no personal liability” under either instrument. See Heim v. Kirkland, 356 So. 2d 850 (Fla. 4th DCA 1978). The effect of any eventual award of fees to the mortgagees must be limited to an increase in the principal amount of any judgment of foreclosure.
Moreover, because the mortgagors are not individually liable for fees, even if they win, they are themselves unable to recover fees, as they claim, under section 57.105(2), Florida Statutes (1991) {“If a contract contains a provision allowing attorney’s fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action ... ”) [e.s.]. For these reasons, both sides’ motions for attorney’s fees on this appeal are denied.
Reversed and remanded with directions.
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Gartner v. Reverse Mortg. Solutions, Inc., 308 So. 3d 942 (Fla. 1st DCA 2021)…wise, should “not be entitled to recover any monies from [Reverse Mortgage]” including attorney’s fees. In support of this proposition, Reverse Mortgage relied on the Third District’s memorandum opinion in Suchman Corporate Park, Inc. v. Greenstein, 600 So. 2d 532 (Fla. 3d DCA 1992). In Suchman, the Third District reversed a summary judgment entered in favor of the defendant/mortgagees. It also reversed the award of attorney’s fees to the mortgagees, not only because of the reversal of the summary judgment, b…1 / 2
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L.D. Stewart and Michael J. Maricle v. Tasnet, Inc., 718 So. 2d 820 (Fla. 2d DCA 1998)…were not equitably entitled to assume the rights of a party to the contracts under legal subrogation. We conclude that section 57.105(2) does not authorize am award of fees under these circumstances. See, e.g., Suchman Corporate Park v. Greenstein, 600 So. 2d 532 (Fla. 3d DCA 1992) (nonrecourse mortgagors not entitled to fees under section 57.105(2)); David v. Rickman, 568 So. 2d 922 (Fla.1990) (no entitlement to fees when contract never formed). This is largely a Pyrrhic victory for the plaintiffs, however…
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First States Invs. 3300, LLC v. Pheil, 52 So. 3d 845 (Fla. 2d DCA 2011)…vered to the adversary party until the condition upon which it was paid has been performedf ] or the contingency occurs. [*849] Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 76 (1932); see also Suchman Corporate Park, Inc. v. Greenstein, 600 So. 2d 532, 533 (Fla. 3d DCA 1992) (reversing order distributing monies paid into registry because the deposit was a tender by the mortgagors to secure the release of the mortgaged property upon payment of the amount which they alleged was due; court held that…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Masser v. The London Operating Co., 106 Fla. 474 (Fla. 1932)
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- Hoffman v. Terry, 397 So. 2d 1184 (Fla. 3d DCA 1981)
- Quayside Assocs., Ltd. v. Harbour Club Villas Condo. Ass'n, Inc., 419 So. 2d 678 (Fla. 3d DCA 1982)
- Mead v. Mead, 193 So. 2d 476 (Fla. 3d DCA 1967)
- Mead v. Mead, 201 So. 2d 552 (Fla. 1967)
- Padley v. Blamberg, 201 So. 2d 552 (Fla. 1967)
- Heim v. Kirkland, 356 So. 2d 850 (Fla. 4th DCA 1978)
- Sonson v. Zonenshine, 432 So. 2d 788 (Fla. 3d DCA 1983)
- Agric. Alumni Seed Improvement Ass'n, Inc. v. Diaz, 432 So. 2d 788 (Fla. 3d DCA 1983)