208 So. 3d 797
Fla. Dist. Ct. App.2016Background
- Alvarez-Mejia obtained a $120,000 mortgage in 2006; the mortgage was later assigned to Bellissimo and Bonita (subsequently Vista Goebel).
- A 2011 fire damaged the home; insurer issued $94,162.52 in checks payable to Alvarez-Mejia, her counsel, and the lenders; Bellissimo withheld proceeds under mortgage sections allowing lender to hold funds during repairs.
- Mortgage provision: insurance proceeds must be applied to repair if restoration is “economically feasible” and lender’s security is not lessened; otherwise proceeds applied to the loan.
- Bellissimo relied on a $98,717 repair estimate and an exterior-only appraisal valuing the home at $90,000 to argue repair was not economically feasible; Alvarez-Mejia presented a later $53,117 estimate and an affidavit asserting post-repair value would exceed the mortgage balance.
- Trial court granted summary judgment for Bellissimo, finding repairs were not economically feasible because repair cost exceeded home value; Alvarez-Mejia appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repair is “economically feasible” under the mortgage | Alvarez-Mejia: repair is economically feasible; post-repair value will exceed mortgage balance | Bellissimo: repair not economically feasible because estimated repair cost exceeds appraisal of value | Reversed: genuine issue exists because lender did not estimate post-repair value and term is ambiguous |
| Proper valuation of repair cost | Alvarez-Mejia: relies on revised $53,117 estimate supporting feasibility | Bellissimo: relies on original $98,717 estimate (used for insurer) showing infeasibility | Reversed: material factual dispute exists over repair cost; trial court improperly resolved conflict |
| Whether trial court may weigh evidence/credibility on summary judgment | Alvarez-Mejia: court should construe conflicts in her favor and not weigh credibility | Bellissimo: relied on the signed original estimate and appraisal as dispositive | Reversed: court improperly weighed evidence and assessed credibility; summary judgment inappropriate |
| Effect of borrower’s pre-loss default on feasibility | Alvarez-Mejia: not determinative here | Bellissimo (and dissent): borrower’s prior default supports finding repairs economically infeasible and lessening of security | Majority did not base decision on default; remanded for factual determination (dissent would affirm) |
Key Cases Cited
- Tropical Glass & Const. Co. v. Gitlin, 13 So.3d 156 (Fla. 3d DCA 2009) (standard of review for summary judgment is de novo)
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) (summary judgment proper only when no genuine issue of material fact)
- Calarese v. Weissfisch, 87 So.3d 1225 (Fla. 3d DCA 2012) (burden on movant to show absence of genuine factual dispute)
- Daneri v. BCRE Brickell, LLC, 79 So.3d 91 (Fla. 3d DCA 2012) (if slightest doubt exists, summary judgment must be reversed)
- Hernandez v. United Auto. Ins. Co., 730 So.2d 344 (Fla. 3d DCA 1999) (trial court must not weigh conflicting evidence on summary judgment)
- Jones v. Stoutenburgh, 91 So.2d 299 (Fla. 1956) (evidence should be construed in favor of non-movant on summary judgment)
- Carter v. Cessna Fin. Corp., 498 So.2d 1319 (Fla. 4th DCA 1986) (affidavits cannot create a fact question by mere conclusory assertions)
- Fuentes v. Sandel, Inc., 189 So.3d 928 (Fla. 3d DCA 2016) (trial court may exclude affidavits that contain only legal conclusions)
- Castro v. Brazeau, 873 So.2d 516 (Fla. 4th DCA 2004) (opinion testimony by unqualified witness is not competent evidence)
- McNabb v. Taylor Elevator Corp., 203 So.3d 184 (Fla. 2d DCA 2016) (expert conclusions admissible when supported by observation/testing)
- Nichols v. Preiser, 849 So.2d 478 (Fla. 2d DCA 2003) (unauthenticated documents cannot support summary judgment)
- Daeda v. Blue Cross & Blue Shield of Fla., 698 So.2d 617 (Fla. 2d DCA 1997) (only competent evidence may be considered on summary judgment)
- Freiday v. OneWest Bank, 162 So.3d 86 (Fla. 4th DCA 2014) (documents attached to summary judgment motions must be authenticated)