       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 28, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1258
                         Lower Tribunal No. 13-26812
                             ________________


                             Lily Alvarez-Mejia,
                                    Appellant,

                                        vs.

         Bellissimo Properties, LLC and Vista Goebel, LLC,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.

      Marin Eljaiek & Lopez, P.L., Anthony M. Lopez and Eric J. Strauss, for
appellant.

     Cohen Law and Danielle A. Cohen, for appellees.


Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
      FERNANDEZ, J.

      Lily Alvarez-Mejia appeals from the trial court’s summary judgment order

in favor of appellees Bellissimo Properties, LLC and Vista Goebel, LLC. We

reverse the summary judgment because the trial court incorrectly found that there

is no genuine issue of material fact as to the value of the property after repair and

the cost of repair. The court also improperly weighed evidence and determined

credibility when it granted the motion.

      On November 2, 2006, EquityLink, Inc. loaned Alvarez $120,000 to

purchase residential property. That same day, Alvarez-Mejia executed a mortgage

and note granting EquityLink a security interest in the property. On December 8,

2006, EquityLink assigned the mortgage to Bellissimo for $62,667 and to Bonita

Properties, LLC for $57,333. Bonita then assigned all of its interest in the

mortgage to Vista Goebel, LLC.

      On December 22, 2011, a fire damaged the property, and Alvarez-Mejia

filed a claim for her losses with the homeowner’s insurance carrier, Capitol

Preferred Insurance Company, Inc. Capitol issued Alvarez-Mejia two checks

totaling $94,162.52: one in the amount of $54,976.43, and the other in the amount

of $39,186.09. The payees on both checks included Alvarez-Mejia, Marin, Eljaiek

& Lopez, P.L. (the law firm that represents Alvarez-Mejia), Bellissimo, and

Bonita.



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      Bellissimo withheld the insurance proceeds pursuant to sections 5 and 11 of

the mortgage, which provides that during the repair and restoration period, Bonita

and Bellissimo “shall have the right to hold the insurance proceeds until Lender

has had an opportunity to inspect such Property to ensure the work has been

completed to Lender’s satisfaction. . . .” Moreover, section 5 of the mortgage titled

“Property Insurance” provides that:

      Unless Lender and Borrower otherwise agree in writing, any
      insurance proceeds, whether or not the underlying insurance was
      required by Lender, shall be applied to restoration or repair of the
      Property, if the restoration or repair is economically feasible and
      Lender’s security is not lessened. . . . If the restoration or repair is not
      economically feasible or Lender’s security would be lessened, the
      insurance proceeds shall be applied to the sums secured by this
      Security Instrument, whether or not then due, with the excess, if any,
      paid to Borrower.

      Bellissimo maintained that it was not economically feasible to repair the

property based on an appraisal of the exterior of the home, which set the home’s

value at $90,000, and a repair estimate from a licensed contractor for $98,717.

Alvarez-Mejia relied on this repair estimate to obtain the $94,162.52 in insurance

proceeds. Alvarez-Mejia later provided Bellissimo with a revised estimate for

$53,117.

      On August 15, 2013, Alvarez-Mejia filed a complaint against Bellissimo and

alleged that she was unable to repair the property because Bellissimo failed to

distribute the insurance proceeds. In response, Bellissimo filed a motion to dismiss,



                                           3
and Alvarez-Mejia subsequently amended her complaint. On November 11, 2014,

Bellissimo filed a motion for summary judgment on all counts in the Amended

Complaint, including: (1) Breach of Contract, (2) Breach of Implied Covenant of

Good Faith and Fair Dealing, (3) Declaratory Judgment, and (4) Unjust

Enrichment. Alvarez-Mejia filed a response in opposition to the motion for

summary judgment along with two supplemental affidavits. The trial court granted

summary judgment in favor of Bellissimo, and found that it was not economically

feasible to repair the property because the cost to repair was greater than the value

of the property. Alvarez-Mejia then filed a motion for reconsideration and

rehearing. The trial court denied the motion.

      The standard of review for summary judgment is de novo. Tropical Glass &

Const. Co. v. Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009). Summary judgment

is proper if there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,

760 So. 2d 126, 130 (Fla. 2000). It is the movant’s burden to establish that there is

no genuine issue of material fact. Calarese v. Weissfisch, 87 So. 3d 1225 (Fla. 3d

DCA 2012). On review of a summary judgment, this Court must “consider the

evidence contained in the record, including any supporting affidavits, in the light

most favorable to the non-moving party . . . and if the slightest doubt exists, the




                                         4
summary judgment must be reversed.” Daneri v. BCRE Brickell, LLC, 79 So. 3d

91, 93-94 (Fla. 3d DCA 2012).

      We agree with Alvarez-Mejia that the trial court erred when it granted final

summary judgment in favor of Bellissimo, as a genuine issue of material fact exists

with respect to the value of the property after repairs. Bellissimo argued that it was

not economically feasible to repair the property with the insurance proceeds

because the initial estimate of $98,717 was greater than the exterior appraisal of

the home, valued at $90,000. However, Alvarez-Mejia’s affidavit provides that it is

economically feasible to repair the property because the value of the property with

repairs will be significantly greater than the outstanding balance of the mortgage.

The term “economically feasible” is undefined in the mortgage and is subject to

different interpretations. In the instant case, summary judgment is precluded

because Bellissimo did not provide an estimate of the value of the property after

repairs, and therefore did not meet its burden of proof that no genuine issue of

material fact exists.

      Moreover, a genuine issue of material fact exists as to the cost of repairs to

the property. In the motion for summary judgment, the parties relied on two

different repair estimates to support their contention. Bellissimo relied on the

initial estimate that Alvarez-Mejia signed and relied upon to obtain the insurance

proceeds, while Alvarez-Mejia relied on the revised estimate that was significantly



                                          5
less than the insurance proceeds. Despite a conflict of material evidence, the trial

court granted summary judgment in favor of Bellissimo.

      It is clear that the trial court placed substantial weight on the initial estimate

on the motion for summary judgment and disregarded the revised estimate.

However, on a motion for summary judgment, the trial court must not weigh

material conflicting evidence or pass upon the credibility of the witness.

Hernandez v. United Auto. Ins. Co., 730 So. 2d 344, 345 (Fla. 3d DCA 1999). See

Jones v. Stoutenburgh, 91 So. 2d 299, 302 (Fla. 1956) (holding that the trial court

should not weigh evidence on the motion for summary judgment and should

construe any evidence in controversy in favor of the non-movant). Only a trier of

fact may weigh evidence and determine credibility—the court was without

authority to weigh the evidentiary value of the conflicting estimates.

      Accordingly, we reverse the order of summary judgment and remand the

case for further proceedings consistent with this opinion.

      Reversed and remanded.

      LAGOA, J., concurs.




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                                Alvarez-Mejia v. Bellissimo Properties, LLC, et al.
                                                             Case No. 3D15-1258


      SHEPHERD, J.

      I respectfully dissent.

      The question in this case is under what circumstances a lender may choose

to apply the proceeds of a homeowner’s insurance policy to the debt due under the

mortgage rather than to the repair or restoration of a home that has suffered a fire

loss. The operative language of the mortgage reads as follows:

      Unless Lender and Borrower otherwise agree in writing, any
      insurance proceeds, whether or not the underlying insurance was
      required by Lender, shall be applied to restoration or repair of
      the Property, if the restoration or repair is economically feasible
      and Lender's security is not lessened....If the restoration or repair is
      not economically feasible or Lender's security would be lessened, the
      insurance proceeds shall be applied to the sums secured by this
      Security Instrument, whether or not then due, with the excess, if any,
      paid to the Borrower.

In other words, a lender is contractually bound by this provision to accede to the

use of insurance proceeds received as a result of a covered property loss if two

independent conditions are satisfied: (1) restoration and repair of the property is

“economically feasible” and (2) the Lender’s security is not lessened as a result.

On summary judgment, it therefore falls to the lender to demonstrate indisputably

either that restoration and repair of the property is not economically feasible, or

that the lender’s security will be lessened as a consequence of proceeding with the



                                         7
repair. I believe the lender met its burden on both of these grounds in this case. In

addition, I believe the undisputed fact that the borrower was in default in this case

long before the date of loss and has remained so constitutes a separate basis for

affirmance.

      On the first ground, the phrase “economically feasible” is undefined in the

mortgage, and the parties provide no guidance to us as to its meaning.

Electronically assisted research of all federal and state case law discloses just one

case where a court has attempted to define the phrase.             In Vongohren v.

Citimortgage, Inc., JFM-14-3549, 2016 WL 739070, at *4 (D. Md. Feb. 25, 2016),

Judge J. Frederick Motz of the United States District Court of Maryland reasoned

to the following definition:

      Feasibility is defined as “[t]he possibility that something can be made,
      done, or achieved, or that it is reasonable; practicability.” Feasibility,
      BLACK'S LAW DICTIONARY (10th ed. 2014). Because
      “economically” modifies “feasible” in the parties' loan agreement, and
      defining “economically feasible” as simply “economically possible”
      has no limiting principle, the best interpretation of “economically
      feasible” is “economically reasonable” or “practicable.”

I find Judge Motz’ reasoning in this case to be persuasive. While it may be

economically possible to repair the property in question, assuming Alvarez-Mejia

was willing to advance the remainder of the funds in excess of the insurance

proceeds to perform the repair on the property, I believe it is not “economically

reasonable” or “practicable” to do so.



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      The following evidence was presented to the trial court on the issue of the

economic feasibility of repair: (1) the mortgage showing the original $120,000

debt; (2) an estimate prepared by The Combined Group, dated November 12, 2012,

signed by Alvarez-Mejia, of $98,717 to repair the fire damage1; (3) an appraisal of

the home commissioned by the lender, valuing the property at $90,000 after

repairs;   2   (4) an affidavit by Alvarez-Mejia in which she averred, without

supporting facts, that “[o]nce repaired, the value of the [p]roperty will be

significantly greater than the outstanding balance on the mortgage”; and (5) an

affidavit by Alvarez-Mejia’s counsel’s office manager, attaching an unsigned

estimate of repairs alleged to have been prepared by The Combined Group on

April 11, 2013, stating the cost of repair to be $53,117.

      The majority would have us believe the latter two affidavits together created

a genuine issue of material fact barring summary judgment. However, the trial

judge correctly found that they were legally insufficient for consideration. Alvarez-

Mejia’s affidavit was properly excluded from consideration as conclusory opinion

evidence. See Fla. R. Civ. Proc. 1.510(e) (“Supporting and opposing affidavits

shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent

1 This estimate was submitted by Alvarez-Mejia to her insurer and netted the
disputed $94,162.52 insurance proceeds being held by the lender.
2 Because the lender was denied access to the interior of the home, this appraisal

was conducted from outside the home.

                                          9
to testify to the matters stated therein.”) Her conclusion that after repairs the value

of the home will exceed the outstanding balance on the mortgage was an opinion

on the ultimate issue to be decided in the case. See, e.g., Carter v. Cessna Fin.

Corp., 498 So. 2d 1319, 1320 (Fla. 4th DCA 1986) (“In short, a party does not

create a fact question merely by placing his assertions in affidavit form.”); see also

Fuentes v. Sandel, Inc., 189 So. 3d 928, 935 (Fla. 3d DCA 2016) (upholding a trial

court’s exclusion of an affidavit which only contained legal conclusions); Castro v.

Brazeau, 873 So. 2d 516, 517 (Fla. 4th DCA 2004) (determining “conclusion of

one passenger that [defendant] had to be speeding based upon the crash damage to

[plaintiff’s] vehicle was not competent evidence because passenger was not

qualified as an expert”); compare McNabb v. Taylor Elevator Corp., No. 2D15-

4838 (Fla. 2d DCA Aug. 17, 2016) (finding expert’s conclusions as to duration of a

leak sufficiently supported by observation and testing).

      The second affidavit of counsel’s office manager and self-described records

custodian, attaching a later dated repair estimate alleged to have been prepared by

The Combined Group, is even more deficient.            First, the repair estimate was

excludable as hearsay, “a statement other than one made by the declarant . . .

offered in evidence to prove the truth of the matter asserted,” § 90.801(1), Fla. Stat.

(2016), because not introduced by The Combined Group’s record custodian. §

90.802(6), Fla. Stat. (2016) (defining a business record as “[a] record . . . of acts . .



                                           10
. made at or near the time . . . by a person with knowledge, if kept in the course of

a regularly conducted business and if it was the regular practice of that business

activity to make such memorandum, report [or] record.”) Additionally, the

unsigned repair estimate was excludable for lack of authentication. Nichols v.

Preiser, 849 So. 2d 478, 481 (Fla. 2d DCA 2003) (“Simply attaching documents

that are not sworn or certified to a motion for summary judgment does not satisfy

the procedural requirements of Florida Rule of Civil Procedure 1.510(e).”); Daeda

v. Blue Cross & Blue Shield of Fla., 698 So. 2d 617, 618 (Fla. 2d DCA 1997)

(“Under our rules of civil procedure . . . only competent evidence may be

considered by the court in ruling upon a motion for summary judgment”); see also

Freiday v. OneWest Bank, 162 So. 3d 86 (Fla. 4th DCA 2014) (excluding default

letter attached to motion for summary judgment but not otherwise authenticated).

The second repair estimate allegedly came from the same company which prepared

the first estimate which was submitted to the insurance company. A side-by-side

comparison of the two estimates reveal only three differences: the contract dates,

the amount for repairs, and the absence of Alvarez-Mejia’s signature on the later

estimate. The details of the work to be performed are identical, and Alvarez-Mejia

never provided an explanation as to the reason for the change in the cost to perform

the same repairs.




                                         11
      Accordingly, accepting the repair estimate of $98,717 as the only accurate

cost of repair and the property value estimated to be $90,000, it is neither

“economically reasonable” nor “practicable” to expend $98,717 to obtain a

$90,000 benefit in this case.     See Vongohren at *5 (finding no genuine issue of

material fact to exist where necessary repairs would cost $67,500 and add only

$35,000 in value, especially where the borrowers are in default under their loan

agreement).

      As to the second ground, we only need to acknowledge that the insurance

proceeds, when granted by the insurer, become part of the security for the loan.

Accordingly, an expenditure for restoration or repair of a property which ends with

a property value less than the amount expended constitutes, a fortiori, a “lessening”

of the lender’s security.       Parenthetically, it should be noted that a careful

consideration of the language of the second ground in section 5 of the mortgage

reveals it is not the post-repair adequacy of the security that is determinative of

whether the lender’s security will be “lessened” by a repair or restoration, but

rather the post-repair value of the security itself. In re Hill at *12 (noting the

abiding interest of the lender during the course of loan is not the outstanding

balance on the loan at any point in time, but rather “ensuring that the value of its

collateral . . . is maintained, if not enhanced”).




                                           12
      Finally, in a fashion very similar to the Vongohrens in their case, Alvarez-

Mejia, in the case before us, defaulted on her mortgage loan long before the fire

loss occurred to property, and there is no evidence in the record that she has

brought the loan current. Although not raised by the parties or considered below, I

would find this alone is sufficient, as a matter of law, to make repair economically

unfeasible in this case. See Vongohren at *4.

      For all of these reasons, I would affirm the decision of the trial court.




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