GEORGE SCHEIBE AND KAYNA SCHEIBE, APPELLANTS,
v.
BANK OF AMERICA, N.A., APPELLEE
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Bank of America sought foreclosure on the Scheibes' mortgage, and the trial court granted summary judgment in favor of the Bank. The appellate court reversed, finding that material factual issues existed regarding the Scheibes' affirmative defenses of waiver and estoppel, making summary judgment inappropriate.
The court reversed the summary judgment because material issues of fact existed that precluded summary judgment. Questions of waiver and estoppel typically involve factual issues inappropriate for summary judgment and require reversal when properly pleaded as affirmative defenses.
[1] A de novo standard of review applies to appellate review of a summary judgment.
[2] The moving party bears the burden to conclusively prove the nonexistence of any genuine issue of material fact for summary judgment.
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Join FLexlaw to unlock all legal intelligence“the party moving for summary judgment has the burden to-prove, conclusively the nonexistence of any genuine issue of material fact”
Establishes the burden of proof for the moving party in summary judgment motions
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Join FLexlaw to unlock all legal intelligenceBank of America filed a mortgage foreclosure action against George and Kayna Scheibe. The trial court entered summary judgment in favor of the Bank an…
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SAWAYA, J.
The mortgagee, Bank of America, N.A., (the Bank) filed a mortgage foreclosure action against the mortgagors, George and Kayna Scheibe (the Scheibes). The trial court entered summary judgment in favor of the Bank and awarded it attorney’s fees and court costs. The Scheibes appeal and raise several issues, one of which is that the trial court erred in entering final summary judgment because disputed issues of material fact exist. We agree and reverse.»
In Krol v. City of Orlando, 778 So. 2d 490, 491-92 (Fla. 5th DCA 2001), this court enunciated the appropriate standard of review that must be applied to appellate review of a summary judgment:
The proper standard of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). In order to determine the propriety of a summary judgment, this court must resolve whether there is any “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, “[t]he party moving for summary judgment has the burden to-prove, conclusively the nonexistence of any genuine issue of material fact.” City of Cocoa v. Leffler, 762 So. 2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla.1966)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, the Appellants, and if the slightest doubt exists, the summary judgment must be reversed. See Sierra.
Our thorough review of the record reveals that material issues of fact exist that require reversal of the summary judgment entered by the trial court. For example,the Scheibes raised waiver and estoppel as affirmative defenses. Although summary judgment may be properly entered in some cases where waiver and estoppel are raised as affirmative defenses, generally “questions of waiver and estoppel typically involve fact issues inappropriate for summary judgment_” Woodruff v. Government Employees Ins. Co., 669 So. 2d 1114, 1115 (Fla. 1st DCA 1996) (citing Mutual of Omaha Ins. Co. v. Eakins, 337 So. 2d 418 (Fla. 2d DCA 1976); Six L’s Packing Co., Inc. v. Florida Farm Bureau Mut. Ins. Co., 268 So. 2d 560 (Fla. 4th DCA 1972)); Consortion Trading Int’l, Ltd. v. Lowrance, 682 So. 2d 221, 222 (Fla. 3d DCA 1996) (“In the instant case, final summary judgment was not appropriate where the defendants had properly pled affirmative defenses to the foreclosure action that sounded in waiver, estoppel, and bad faith. These defenses raised genuine issues of material fact....”); Dusich v. Horley, 525 So. 2d 507, 509 (Fla. 2d DCA 1988); Parker v. Dinsmore Co., 443 So. 2d 356, 358 (Fla. 1st DCA 1983) (“Summary judgment is particularly unsuitable in those cases where ‘the facts and circumstances indicate a possibility of an estoppel or a waiver.’ ’’) (quoting 22 Fla. Jur.2d Estoppel and Waiver § 9 (1980) (emphasis supplied)) (citing Macina v. Magurno, 100 So. 2d 369, 373 (Fla.1958)).
Accordingly, we reverse the summary judgment rendered in favor of the Bank and remand for further proceedings.
REVERSED and REMANDED.
PLEUS and ORFINGER, R.B., JJ„ concur.
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Wyman Lawrence v. PEP Boys-Manny MOE & Jack, Inc., 842 So. 2d 303 (Fla. 5th DCA 2003)…filed by Mr. Lawrence when it granted the summary judgment, we reverse. Summary judgments are reviewed de novo by an appellate court. See Volusia County v. Aberdeen of Ormond Beach, L.P., 760 So. 2d 126 (Fla.2000); Scheibe v. Bank of America, N.A., 822 So. 2d 575 (Fla. 5th DCA 2002). The standards to be used in the review of a summary judgment are familiar. In order to determine the propriety of a summary judgment, an appellate court must resolve whether there is any “genuine issue as to any material fact” a…
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Goodwin v. BLU Murray Ins. Agency, Inc., 939 So. 2d 1098 (Fla. 5th DCA 2006)…invoking it. Mercede v. Mercede Park Italian Restaurant, Inc., 392 So. 2d 997, 998 (Fla. 4th DCA 1981). Summary judgment is particularly unsuitable where the facts and circumstances indicate a possibility of waiver. Scheibe v. Bank of America, N.A., 822 So. 2d 575, 575-76 (Fla. 5th DCA 2002). Mere delay is insufficient to support a defense of waiver or estoppel. Mercede, 392 So. 2d at 998; Air Prods. & Chem., Inc. v. Louisiana Land & Exploration Co., 867 F. 2d 1376, 1380 (11th Cir.1989) (applying Florida law…
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Doctor Rooter Supply & Serv. v. McVay, 226 So. 3d 1068 (Fla. 5th DCA 2017)…omas is believed, Doctor Rooter and Thomas could not have brought the theft claim as a part of the divorce because they did not know about it.6 Therefore, summary judgment should not have been granted on this basis. See Scheibe v. Bank of Am., N.A., 822 So. 2d 575, 575 (Fla. 5th DCA 2002) (finding . summary judgment improperly granted on waiver issue where questions of fact remain); Parker v. Dinsmore Co., 443 So. 2d 356, 358 (Fla. 1st DCA 1983) (reversing entry of summary judgment where questions of fact rem…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)
- Krol v. City OF Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001)
- Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000)
- SIX L'S Packing Co., Inc. v. Fla. Farm Bureau Mut. Ins. Co., 268 So. 2d 560 (Fla. 4th DCA 1972)
- Mut. OF Omaha Ins. Co. v. Eakins, 337 So. 2d 418 (Fla. 2d DCA 1976)
- City OF Cocoa v. Glynn Leffler, 762 So. 2d 1052 (Fla. 5th DCA 2000)
- MacIna v. Magurno, 100 So. 2d 369 (Fla. 1958)
- Parker v. The Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)
- Woodruff v. Gov't Emps. Ins. Co. & USAA Prop. & Cas. Ins., 669 So. 2d 1114 (Fla. 1st DCA 1996)