BERNIE M. SULLIVAN ET AL., APPELLANTS,
v.
LEO BLOOM AND FRANK J. DECESARE, APPELLEES
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The court held that summary judgment was improperly granted because a genuine issue of material fact existed regarding the parties' intent concerning an exculpatory clause in a promissory note.
The parties entered into a contract for the sale of real property, which included an exculpatory clause stating the maker would not be personally liab…
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TOM WADDELL, Jr., Associate Judge.
The trial court entered a Summary Judgment in favor of the Plaintiffs on a promissory note. We reverse.
One of the Plaintiffs, Frank J. DeCesare, (apparently one of the corporation officers, though not so designated), signed a contract as did one of the Defendants, Paulette N. Lee, for the sale of real propérty. The contract provided for a purchase money mortgage secured by the note sued upon. The contract included the following — “Es-culpatory (sic) Clause: The property shall be the sale as set for reclaim for deposit and in no event shall the maker be personally liable for this indebtedness”.
The Defendants contend that through an oversite the “Esculpatory Clause” was deleted from the note. They further contend that all parties to the transaction intended that the makers of the note would not be personally liable, (note — the clause uses the word “maker” not “buyer” or “purchaser”, the words used elsewhere in the contract to designate this party).
The Plaintiffs argue that this clause applied to another promissory note, not involved in this law suit.
The trial judge sitting as the trier of facts in this non jury case may well decide against these Defendants, but when hearing a Motion for Summary Judgment must not weigh the evidence.
Reversed and Remanded.
MAGER, C. J., and CROSS, J., concur.
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Kirsh v. Mannen, 393 So. 2d 63 (Fla. 3d DCA 1981)…DCA 1978); Lauer v. Wilson, 355 So. 2d 187 (Fla. 1st DCA 1978); B & J Van Beber Equipment Rental, Inc. v. Pedersen, 348 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. 2…