648 So. 2d 839 | Fla. Dist. Ct. App. | 1995
Lees, as personal representative of the estate of Paul E. Lees, appeals from a summary judgment entered against the estate. A review of this record convinces us that the record is insufficient to warrant granting summary judgment for Pierce. The judgment must therefore be reversed and this cause remanded for further proceedings.
On July 29,1971, Paul E. Lees received an executed promissory note in the sum of $250,000 from a corporate entity referred to as BRIC. Later that year, BRIC wanted to sell property located in Collier County, Florida (presently known as Big Cypress), to General Land Investment Corporation. A Trust Agreement was entered into on November 15, 1971, between BRIC, Pierce (the Trustee), and certain beneficiaries
The beneficiaries gave a satisfaction of the $100,000 mortgage and in return, received a new promissory note from BRIC in that sum with the General Land note and mortgage as collateral. The trust provided that all sums due BRIC under this mortgage would be paid to Pierce, as trustee, and directed him to pay 50 percent of the proceeds to BRIC and 50 percent to the beneficiaries named in the trust agreement. The trust agreement and satisfaction of mortgage were duly executed. On December 15, 1971, BRIC assigned the remaining 50 percent interest in the General Land note and mortgage to the beneficiaries and directed Pierce, as trustee, to pay 100 percent of the proceeds received thereunder to the beneficiaries until that obligation was satisfied.
BRIC and Lees executed an Assignment and Extension Agreement on September 30, 1972, which extended the payment date of Lees’ note until March 31, 1973. As consideration for this extension, the agreement contained a specific assignment to Lees of the “beneficial interest in that certain note ... issued by GENERAL LAND INVESTMENT CORP.” This assignment was subject only to the “first assignment” on the $100,000 debt owed the beneficiaries under the trust agreement. It further provided that after the beneficiaries and Lees were paid, and upon request from BRIC, Pierce was to assign the note and mortgage back to BRIC. By 1974 or 1975, all of the beneficiaries named in the trust agreement had been repaid in full, and Lees began receiving the proceeds from the General Land note and mortgage.
General Land made individual and bulk sales of lots covered by the note and mortgage. The lots sold in bulk were released from General Land’s master mortgage conditioned upon an assignment of the new mortgages to Pierce. In 1977 three entities that had purchased lots in bulk defaulted, and Pierce brought foreclosure proceedings against them, hiring himself as attorney to represent the trust. He then became the successful bidder at the foreclosure sale of these properties, purchasing them for the amount of the judgment, which included his attorneys fees.
It appears that at some point, BRIC became insolvent.
All of the monies received by Pierce as a result of these condemnation proceedings were allocated by him to himself or others in payment of attorneys fees and costs. Although Lees made demand for payment on the note, Pierce rejected that demand, and
This appeal can only be affirmed if we agree the record establishes there is no material fact or controversy concerning Pierce’s good faith in paying himself costs and attorney’s fees. We think Pierce’s good faith was controverted here and put at issue. Thus, summary judgment was improvidently entered for Pierce.
The attorney who represented General Land in the condemnation proceeding stated in his affidavit that Pierce’s actions were not in good faith, that Pierce contributed little if anything to the outcome of the case, and that his efforts were duplicitous and unnecessary. Pierce’s former secretary gave testimony that Pierce billed her time and the time of other secretaries as attorney time. The sole evidence of Pierce’s good faith was his own statement that he did act in good faith. Based on this record, we cannot say that there was no material issue of fact as to Pierce’s good faith.
REVERSED AND REMANDED.
. The beneficiaries named in the trust agreement did not include Lees.
. We are unable to ascertain, from this record, whether BRIC declared bankruptcy or even if it was dissolved.
. This opinion does not address the merits of the case nor other matters which may be involved, such as whether the trust in fact continued to be in existence at the time Pierce acted as a "trustee” in hiring himself to represent the trust.