ANTHONY MCKOY AND PAULETTE R. MCKOY, APPELLANTS,
v.
MICHAEL DESILVIO, PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM J. HAYES, APPELLEE
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In a quiet title action, the estate's personal representative challenged two quitclaim deeds executed by Hayes's sisters transferring property interests to the McKoys. The court affirmed the voiding of one deed due to insufficient subscribing witnesses but reversed as to the second deed due to genuine issues of material fact regarding consideration.
The court reversed the summary judgment as to the Herron deed because disputed issues of material fact existed regarding whether the consideration was adequate, but affirmed as to the Earnshaw deed because it was undisputedly signed by only one subscribing witness when two were required by statute.
[1] A deed reciting nominal consideration, such as $1.00 and other good and valuable consideration, may be valid if there are disputed issues of material fact regarding the e…
[2] Summary judgment is improper when the record evidence shows a genuine issue as to any material fact.
Previewing 2 of 5 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“a promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do”
Establishes the legal standard for consideration in deed cases; supports reversal regarding the Herron deed.
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Join FLexlaw to unlock all legal intelligenceWilliam J. Hayes owned real property at the time of his death. Two of Hayes's sisters, Eileen Earnshaw and Catherine Herron, executed quitclaim deeds …
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NORTHCUTT, Chief Judge.
As personal representative for the estate of William J. Hayes, Michael DeSilvio filed a quiet title suit attacking two quitclaim deeds purporting to transfer interests in a parcel of real property owned by Hayes at the time of his death.1 The quitclaim deeds were executed by two of Hayes’s sisters, Eileen Earnshaw and Catherine Herron, and the deeds transferred any interest they had in the property to Anthony and Paulette McKoy. The McKoys now appeal an adverse summary judgment that declared the deeds void.
We affirm as to one deed and reverse as to the other. Both deeds recited “consideration of the sum of $1.00 and other good and valuable consideration.” In the quiet title action, DeSilvio alleged that the deeds failed for lack of consideration. There were disputed issues of material fact on this issue. See Diaz v. Rood, 851 So. 2d 843, 846 (Fla. 2d DCA 2003) (stating that “a promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do”) (citations omitted). Notwithstanding, the circuit court ruled that the deeds were void due to a lack of consideration. In granting DeSilvio’s motion for summary judgment on this ground, the circuit court erred. See Fla. R. Civ. P. 1.510(c) (directing that summary judgment shall be granted only when the record evidence shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”); see also Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
Accordingly, we reverse on this point.
Our reversal affects only the Her-ron deed, however, because the Earnshaw deed suffers from an additional deficiency. As alleged in DeSilvio’s motion for summary judgment, the Earnshaw deed contained the signature of only one subscribing witness. As to this deed, the summary judgment was also based on the undisputed fact that the deed was not signed by the requisite number of subscribing witnesses. See § 689.01, Fla. Stat. (2003) (requiring presence of two subscribing witnesses to convey real estate).
The McKoys claimed that the notary also acted as a subscribing witness. But she did not sign the deed as such, and the McKoys did not file a counterclaim seeking to reform the deed. See Smith v. Royal Auto. Group, Inc., 675 So. 2d 144, 153-54 (Fla. 5th DCA 1996) (stating that reformation action may be used to supply missing signature). In any event, any such action would have required that the original grantor be joined as an indispensable party. See Palm v. Taylor, 929 So. 2d 566 (Fla. 2d DCA 2006) (reversing judgment reforming deed when claim was not raised until amendment of complaint during trial, over objection, and when original grantor was not party to suit).
Therefore, although we reverse the summary judgment as to Herron’s deed, we affirm the summary judgment as to Earnshaw’s deed.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and WHATLEY, JJ., Concur. . This case involves property at 1145 Highland Street in St. Petersburg. These same parties have recently appeared in this court regarding adjacent property at 866 Marion Court South. DeSilvio v. McKoy, 941 So. 2d 374 (Fla. 2d DCA 2006) (table decision).
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Cited By
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Paris v. Joseph, 329 So. 3d 775 (Fla. 4th DCA 2021)…y of section 732.702(1) at oral argument, the parties made certain arguments. We disagree with the arguments presented by both sides at oral argument that the requirement of two subscribing witnesses was met in this case. See McKoy v. DeSilvio, 974 So. 2d 539, 540 (Fla. 2d DCA 2008) (determining that the notary did not count as one of two subscribing witnesses required to transfer real property via quitclaim deed, where notary did not sign deed as a subscribing witness); Am. Gen. Home Equity, Inc. v.…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Smith v. Royal Auto. Grp., Inc., 675 So. 2d 144 (Fla. 5th DCA 1996)
- Diaz v. Rood, 851 So. 2d 843 (Fla. 2d DCA 2003)
- Loris G. Palm v. Randy L. Taylor & Andrew Puszkar, 929 So. 2d 566 (Fla. 2d DCA 2006)