DONALD H. KEMPER, APPELLANT,
v.
THE FIRST NATIONAL BANK OF DAYTON, OHIO, APPELLEE
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Donald Kemper appeals a summary final judgment entered by a Florida court in favor of First National Bank of Dayton for amounts allegedly owed on promissory notes. The Third District Court of Appeal reversed the summary judgment, holding that material facts remained in dispute regarding credit for payments, application of a Mary Carter agreement settlement, and whether the agreement constituted a release of Kemper.
The summary final judgment was reversed because the trial court erred in granting summary judgment when material facts had not been sufficiently developed and genuine issues of material fact existed that precluded summary judgment as a matter of law.
[1] A summary judgment should not be granted until facts are sufficiently developed to ensure no genuine issue of material fact exists.
[2] A "Mary Carter" agreement may raise substantive issues regarding the release of a party from a judgment.
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Join FLexlaw to unlock all legal intelligence“the court should decline to grant a summary final judgment until such time as the facts have been sufficiently developed to enable the court to be reasonably certain that there is no genuine issue of material fact and that the only question to be determined is one of law”
Establishes the legal standard for summary judgment and the basis for reversal.
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Join FLexlaw to unlock all legal intelligenceIn 1969, First National Bank sued Polaris Productions, Inc., A. E. Staley, Eugene H. Prinz, and Donald H. Kemper on a promissory note in Ohio court, o…
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The appellant, Donald H. Kemper, appeals from a summary final judgment entered against him which recites liability for the following amounts: (1) in the sum of $38,328.67, and (2) in the sum of $8,-790.25 jointly with Eugene H. Prinz.1 In addition, the summary final judgment finds against the appellant upon his counterclaim.2 On this appeal, the summary final *805judgment against the appellant is reversed upon a holding that the court should decline to grant a summary final judgment until such time as the facts have been sufficiently developed to enable the court to be reasonably certain that there is no genuine issue of material fact and that the only question to be determined is one of law. See Pancoast v. Pancoast, Fla.App. 1957, 97 So.2d 875.
The background of the case may be summarized as follows. In 1969, the appellee-bank instituted a suit on a promissory note in the Court of Common Pleas, Montgomery County, Ohio, against Polaris Productions, Inc., A. E. Staley, Eugene H. Prinz, and Donald H. Kemper. The Ohio court entered a judgment in the amount of $47,-315.63 in favor of the appellee.
Subsequent to the entry of the Ohio judgment, the appellee sold securities which had been pledged by defendant Kemper as collateral for two notes. One note was from Polaris Productions, Inc., while the other was the note on which the Ohio judgment was entered. The proceeds were used to satisfy in full a judgment on the note from Polaris Productions, Inc., and the remaining balance of $12,862.07 was applied to reduce the Ohio judgment.
On November 22, 1971, the appellee-bank entered into a so-called “Mary Carter” agreement with Eugene H. Prinz and A. E. Staley whereby appellee promised to forego collection of the Ohio judgment against Prinz and Staley in consideration of Prinz and Staley creating a fund in which the sum of $19,250.00 was deposited. Under the terms of this agreement appellee would be able to levy on the fund after July 1, 1972, if it were unable to collect the amount of the Ohio judgment from the appellant.
In the case at bar, the pleadings raise several substantive issues which were not resolved by the affidavits filed in support of appellee’s motion for summary judgment. Among these issues are: (1) whether appellant was given credit in the final judgment for the sum of $9,761.99 as to which the amended complaint alleged “[n]o part of said Judgment has been paid or satisfied, except the sum of $9,761.99 . ”; (2) whether appellant was entitled to or was given credit for the sum of $19,250.00 which was deposited under the so-called “Mary Carter” agreement where said amount was subject to application upon the judgment at the time the judgment was entered; and, (3) whether the “Mary Carter” agreement, which provided that the appellee-bank could retain a sum of $20,-000.00 if it collected the amount of the Ohio judgment from the appellant, constituted a release of the appellant.
Accordingly, the summary final judgment is reversed for further proceedings in the cause.
Reversed.
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Theresa Singer Ad Litem for Ann Doe v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987)…ovember 15, 1985. A summary judgment should not be granted until the facts have been sufficiently developed to enable the court to be reasonably certain that there is no genuine issue of material fact. Kemper v. First National Bank of Dayton, Ohio, 277 So. 2d 804 (Fla. 3d DCA 1973). Similarly, a summary judgment is also premature where there has been insufficient time for discovery, Moore v. Freeman, 396 So. 2d 276 (Fla. 3d DCA 1981), or where a party through no fault of his own, has not yet completed discov…
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Payne v. Cudjoe Gardens Prop. Owners Ass'n, Inc., 837 So. 2d 458 (Fla. 3d DCA 2002)…ation. It is axiomatic that Summary Judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla.1966); Kemper v. First Nat’l Bank of Dayton, Ohio, 277 So. 2d 804 (Fla. 3d DCA 1973). Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). Thus, w…
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Campbell v. Hartford Fire & Cas. Co., 309 So. 2d 624 (Fla. 3d DCA 1975)…2, 265 So. 2d 5. This is particularly true when, because of the protective order, the discovery had not been completed by the plaintiff. Pancoast v. Pancoast, Fla.App. 1957, 97 So. 2d 875; Kemper v. First National Bank of Dayton, Ohio, Fla.App.1973, 277 So. 2d 804; Lovelace v. Sobrino, Fla.App. 1973, 280 So. 2d 514. Therefore, so much of the summary judgment in favor of the defendant Beck-stead is reversed with directions to the trial court to leave him in the proceeding as a defendant, both as to the origin…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pancoast v. Pancoast, 97 So. 2d 875 (Fla. 2d DCA 1957)