ROBERT E. PARKER AND ELAINE B. PARKER, HIS WIFE, APPELLANTS,
v.
JOSEPH F. FERRARA, APPELLEE
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Mortgage defendants appealed a summary decree foreclosing a mortgage lien, claiming failure of consideration, that they were merely guarantors rather than principal debtors, and that the contract was orally modified. The appellate court affirmed, finding no genuine issue of material fact and holding that the defendants' assertions were mere conclusions unsupported by facts.
The court affirmed summary judgment, holding that the defendants' contrary assertions were mere conclusions of the pleader unsupported by significant facts, and that the record did not support any genuine issue of material fact regarding failure of consideration or oral modification of the contract.
“The contrary assertions of the defendants are, without more, mere conclusions of the pleader.”
Establishes that the defendants' factual claims were conclusory statements not supported by evidence and therefore insufficient to create a genuine dispute of material fact.
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Join FLexlaw to unlock all legal intelligenceThe Parkers signed a mortgage and note for $80,000 in their individual capacities. Separately, Citrus City, Inc. executed a loan guarantee agreement. …
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Defendants Robert E. Parker and wife appeal an adverse summary decree which decreed a mortgage lien upon certain lands superior in dignity to claims of said defendants. The chancellor ruled that the plaintiff was entitled to foreclosure. By order of this court dated 14 October 1964, the appeal is treated as interlocutory. The sole question presented is whether or not there was any genuine issue of material fact which would preclude the summary decree as entered. We find no error and therefore affirm.
The defendants admittedly signed a mortgage and note in their individual capacities in the amount of $80,000.00 which loan was separately guaranteed by Citrus City, Inc. by a loan guarantee agreement signed by the corporate president and secretary. In the foreclosure suit the defendants alleged: (1) failure of consideration in that the loan was not paid to them but was paid directly to Citrus City, Inc.; (2) that defendants were not the principal debtors but that they merely guaranteed a loan to the corporation in the event that the corporation failed; and (3) that subsequent to execution of the note and mortgage the parties orally modified the agreement.
The plaintiff asserted that the loan was made to the defendants individually. This is consistent with the face of the note and the mortgage executed by the defendants and with the Loan Guaranty Agreement executed by the corporation. The contrary assertions of the defendants are, without more, mere conclusions of the pleader. The situation here would be essentially the same even if it were assumed that the contract was made in accommodation of a third party beneficiary.
As to their remaining contention of subsequent modification of agreement, the defendants cite law but no significant facts. The record does not support the contention that there was an oral modification of the contract after execution of the subject mortgage. Cf. Sears v. James Talcott, Inc., Fla.App.1965, 174 So.2d 776, Second District opinion filed 15 April 1965. On such a record the court may pierce the paper issues created by the pleadings. Smith v. Bollinger, Fla.App.1962, 137 So.2d 881; *576Hoyt v. Galbrcath, Fla.App. 1961, 135 So.2d 875; Warring v. Winn-Dixie Stores, Inc., Fla.App.1958, 105 So.2d 915, 918.
There appearing no reversible error, the decree is affirmed.
ALLEN, Acting C. J., and ANDREWS, J., concur.
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Giallanza v. Sands, 316 So. 2d 77 (Fla. 4th DCA 1975)…the law that when the facts established on motion for summary judgment clearly show that there is no genuine issue of any material fact the court may pierce the paper issues made by the pleadings and render judgment on the merits. Parker v. Ferrara, 174 So. 2d 574 (2d DCA Fla.1965); Vihon v. McCormick, 109 So. 2d 400 (2d DCA Fla.1958); Warring v. Winn Dixie Stores, Inc., 105 So. 2d 915 (3d DCA Fla.1958); See, 30 Fla.Jur., Summary Judgment § 13 (1974). From the uncontradicted sworn testimony of Dr. Strack it…
Authorities Cited
- City OF Miami v. Lager, 105 So. 2d 915 (Fla. 3d DCA 1958)
- Sears v. James Talcott, Inc., 174 So. 2d 776 (Fla. 2d DCA 1965)
- Smith v. Bollinger, 137 So. 2d 881 (Fla. 2d DCA 1962)
- Hoyt v. Galbreath, 135 So. 2d 875 (Fla. 3d DCA 1961)