Land Development Services, Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865

Background

Gulf View Townhomes, LLC purchased Land Development's right to buy vacant Naples land under a purchase and sale agreement in June 2005.
Land Development took back a second mortgage and secured it with a $300,000 promissory note; Gulf View later defaulted on the note according to Gulf View due to alleged misrepresentations about units that could be built.
Land Development filed a foreclosure action in May 2006 attaching the note and mortgage; Gulf View admitted execution and delivery of the note and mortgage and that copies attached were true.
The parties mediated a settlement to pursue permit revisions to allow more than 46 units; if unsuccessful, the mortgage would be cancelled; if successful, Gulf View would pay Land Development for additional units; a modified note/mortgage were contemplated.
Although the settlement contemplated dismissal of the foreclosure and counterclaims, the anticipated stipulation for dismissal was never filed; a separate enforcement action was later pursued.
Gulf View moved for summary judgment in March 2010, supported by an affidavit claiming the original note was not in evidence and that Gulf View was not indebted; Land Development did not counter the motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment was proper on the note issue.	LD contends Gulf View failed to show no genuine issue of material fact.	Gulf View claims the original note was not in evidence and Gulf View is not indebted.	Summary judgment improper; cannot prove negative that no genuine issue exists.
Whether the 'not indebted' allegation could support summary judgment.	Gulf View's conclusory assertion contradicted by its prior admissions; LD need not counter absent evidence.	Gulf View was entitled to judgment as a matter of law based on lack of indebtedness.	Improper to grant summary judgment; conclusory, contradicted by pleadings.
Whether the final judgment improperly discharged the mortgage beyond what Gulf View sought.	Discharge of the mortgage was not requested in the motion or at the hearing.	Discharge was implied or necessary relief from the motion.	Final judgment discharge of the mortgage violated due process; reversed and remanded.

Key Cases Cited

Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995) (summary judgment burden on movant; not substitute for trial)
Gomes v. Stevens, 548 So.2d 1163 (Fla. 2d DCA 1989) (summary judgment limited to irrefutably proving nonexistence of material fact)
Kenyon v. Polo Park Homeowner's Ass'n, 907 So.2d 1226 (Fla. 2d DCA 2005) (nonmoving party bears no burden to prove at the summary judgment stage)
Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415 (Fla. 4th DCA 2004) (burden on movant to show no genuine issue of material fact)
Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272 (Fla. 2d DCA 2006) (factors for summary judgment — admissible evidence and lack of genuine issue)
Misal Constr. Co. v. Rusco Indus., Inc., 403 So.2d 607 (Fla. 4th DCA 1981) (counterevidence not required if movant's material contradicts by other record)
Koresko v. Coe, 683 So.2d 602 (Fla. 2d DCA 1996) (countering movant's affidavit with other record evidence suffices)
Lee-Booth, Inc. v. Fid. & Deposit Co. of Md., 399 So.2d 531 (Fla. 2d DCA 1981) (affidavits cannot rely on ultimate conclusions; need competent evidence)
Buzzi v. Quality Serv. Station, Inc., 921 So.2d 14 (Fla. 3d DCA 2006) (affidavits cannot be based on conclusions of law)
Cavalier v. Ignas, 290 So.2d 20 (Fla. 1974) (due process requires notice and opportunity to be heard before final judgment)
Mizrahi v. Mizrahi, 867 So.2d 1211 (Fla. 3d DCA 2004) (due process and notice requirements in contested judgments)
Wallace v. Wallace, 605 So.2d 504 (Fla. 4th DCA 1992) (issues not pleaded or noticed cannot be decided)