THEO CARTER, D/B/A NATURAL FISH MOUNT COMPANY, APPELLANT,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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Carter appeals a summary judgment granted in favor of Dade County on Carter's counterclaim for breach of an exclusive taxidermy license agreement. The court reversed the summary judgment, finding that ambiguities in the contract and conflicting evidence regarding the parties' intent precluded summary disposition.
Summary judgment was improper because Dade County failed to carry its burden of proving the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. The latent ambiguity in paragraph 22 and conflicting evidence regarding the parties' intentions precluded summary disposition.
“the movant must prove that there exist no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”
Establishes the burden of proof required for summary judgment under Florida Rules of Civil Procedure
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Join FLexlaw to unlock all legal intelligenceDade County granted Carter an exclusive license to operate a taxidermy agency at Haulover Beach Park Marina. The license agreement, specifically parag…
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This is an appeal by the counterplaintiff, Theo Carter, d/b/a Natural Fish Mount Company, from an adverse summary final judgment.
This law suit arose out of a dispute concerning an agreement entered into between Dade County and Carter, whereby Carter was granted the right to operate a taxidermy agency at Haulover Beach Park Marina. Paragraph 22 of the subject agreement states:
“This license conveys to the licensee the exclusive right to solicit and transport from the park fish mounts, but is not to be construed in any way as to limit the rights of park patrons in transporting their fish to a taxidermist of their own choice.”
Dade County initiated the cause, claiming default by Carter in the payment of sums due under the contract. Carter denied the indebtedness and counter-claimed for damages upon the ground that the county had not granted her “the exclusive right to solicit and transport from the park fish mounts”, but had instead allowed a competitor the right to solicit and transport fish mounts from the park in direct contravention of the agreement.
The county denied the allegations of the counter-claim and moved for summary judgment, which motion was denied upon first hearing. However, upon rehearing, the lower court entered an order reading in part as follows:
“ * * * It is the Court’s conclusion that in the License Agreement sued upon DADE COUNTY granted to the Coun-terplaintiff, THEO CARTER, d/b/a NATURAL FISH MOUNT COMPANY, an exclusive license to operate a taxidermy agency within the Haulover Beach Park Marina for the period of the License Agreement. By granting such exclusive license, DADE COUNTY granted to Counterplaintiff a license to operate a taxidermy agency within the Haulover Beach Park Marina for the period of the License Agreement and agreed not to grant any other person, corporation or entity a license, permit or right to operate a taxidermy agency within the Haulover Beach Park Marina during period of the License Agreement. The record affirmatively shows without dispute of material fact that DADE COUNTY did grant the Counterplaintiff the agreed upon license to operate a taxidermy agency within the Haulover Beach Park Marina during the period of the License Agreement and did not grant to any other person, corporation or entity a license, permit or right to operate a taxidermy agency within the Haulover Beach Park Marina in competition with Counterplaintiff’s exclusive license. It is thereupon,
“ORDERED AND ADJUDGED as follows:
“1. Counterdefendant’s Motion for Summary Final Judgment on the Counterclaim be and the same is hereby granted.
“2. Summary Final Judgment is hereby entered in favor of Counterdefendant on the Counterclaim and against the Counterplaintiff.”
Appellant contends that the pleadings, affidavits and exhibits contained in the record on appeal fail to support the entry of a summary judgment. We agree and reverse.
Under the procedure for summary judgment, as provided in Rule 1.510, Florida Rules of Civil Procedure, 31 F.S.A., the movant must prove that there exist no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Holl v. Talcott, Fla.1966, 191 So.2d 40. Appellee has failed to carry that burden in this case.
In view of the latent ambiguity surrounding the meaning of paragraph 22 of the subject agreement and the confusion *596evident from the conflicting pleadings and affidavits as to the intention of the parties, we are of the opinion that the lower court erred in granting summary final judgment in this case. Visingardi v. Tirone, Fla.1967, 193 So.2d 601; Holl v. Talcott, supra; Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780; Wilson v. State Road Department, Fla.App.1967, 201 So.2d 619. See also: St. Lucie County Bank & Trust Co. v. Aylin, 94 Fla. 528, 114 So. 438.
Therefore, the order appealed is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kirsh v. Mannen, 393 So. 2d 63 (Fla. 3d DCA 1981)…48 So. 2d 1163 (Fla. 3d DCA 1977); Mathews Corp. v. Tutten Enterprises, Inc., 343 So. 2d 902 (Fla. 4th DCA 1977); Sullivan v. Bloom, 342 So. 2d 1036 (Fla. 4th DCA 1977); Stone v. Lingerfeldt, 330 So. 2d 40 (Fla. 4th DCA 1976); Carter v. Dade County, 213 So. 2d 594 (Fla. 3d DCA 1968), cert. denied, 219 So. 2d 700 (Fla.1968); Mead v. Mead, 193 So. 2d 476 (Fla. 3d DCA 1967), cert. denied, 201 So. 2d 552 (Fla.1967); Benson v. Atwood, 177 So. 2d 380 (Fla. 1st DCA 1965); Owens v. MacKenzie, 103 So. 2d 677 (Fla. 1st…
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Dade Cnty. v. Theo Carter, 231 So. 2d 241 (Fla. 3d DCA 1970)…PER CURIAM. This case was here before on an appeal by Carter from a summary final judgment for Dade County. Carter v. Dade County, Fla.App.1968, 213 So. 2d 594. This law suit arose out of the dispute set forth in that opinion. There, a summary final judgment for Dade County was reversed and remanded for trial. After a jury trial, final judgment for damages and costs was entered for Carter. Dade County app…
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Dade Cnty. v. Theo Carter, 219 So. 2d 700 (Fla. 1968)…Certiorari denied without opinion. 213 So. 2d 594.…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)
- Holland Paving Co., Inc. v. Dann, 175 So. 2d 780 (Fla. 1965)
- Harvey Bldg., Inc. v. Ocie M. Haley, 175 So. 2d 780 (Fla. 1965)
- St. Lucie Cnty. Bank & Tr. Co. v. Aylin, 94 Fla. 528 (Fla. 1927)
- Wilson v. State Rd. Dep't of Fla., 201 So. 2d 619 (Fla. 1st DCA 1967)