       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 10, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1013
                          Lower Tribunal No. 15-9538
                             ________________


                    Keys Country Resort, LLC, et al.,
                                   Appellants,

                                        vs.

                      1733 Overseas Highway, LLC,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jacqueline Hogan
Scola, Judge.

      Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for
appellants.

      Lerman & Whitebook, P.A., and Carlos D. Lerman (Hollywood), for appellee.


Before EMAS, C.J., and LOGUE and HENDON, JJ.

      LOGUE, J.
      Keys Country Resort, LLC, and 1733-1777 Overseas Highway, LLC

(hereinafter “Keys Country”) appeal from a final summary judgment for reformation

entered in favor of 1733 Overseas Highway, LLC (“Overseas Highway”). While the

affidavits filed by Keys Country met its burden as the movant for summary

judgment, the affidavits filed by Overseas Highway also met their burden as the

opponents by identifying a genuine issue of material fact in dispute. Because the

disputed issue of fact can only be resolved by trial, we reverse.

                                    Background

      This appeal arises from a dispute over whether certain real property, referred

to as the bay bottom parcel, was inadvertently omitted from a mortgage. Keys

Country purchased four adjacent parcels of property in Vaca Key consisting of three

upland properties and one bay bottom parcel. The four parcels became unified under

a single title. Later, in 2005, Keys Country obtained a development loan from

Premier American Bank (the “Lender”). The mortgage contained the legal

descriptions of the upland parcels, but not the bay bottom parcel. The mortgage was

modified four times, but the legal description of the bay bottom parcel was never

added. Keys Country defaulted in 2009, and the Lender obtained a final judgment

of foreclosure. The property foreclosed upon was subsequently conveyed several

times in deeds that did not reference the bay bottom parcel.




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      In 2015, the Lender filed suit to reform the mortgage to include the bay bottom

parcel and for reforeclosure.1 The Lender argued that omission of the bay bottom

parcel was the result of a scrivener’s error caused by mutual mistake, and moved for

summary judgment. In support, the Lender submitted the affidavit of Jose L. Pruna,

a Loan Officer for Premier American Bank. Mr. Pruna stated that the Loan Approval

Form for the first mortgage included a legal description of the bay bottom parcel and

that “at the time of closing, it was the intent of the [Lender] to encumber the Uplands

and the Bay Bottom.” He swore the Lender did not discover the omission until 2013,

that the “omission was a mistake,” and “[a]t all times from the origination of the

transaction described in the Loan Approval Form to the present, it had been the

intention of the [Lender] to receive a Mortgage for the Uplands and Bay Bottom.”

      The Lender also submitted evidence that Keys Country stopped treating the

bay bottom parcel as an asset after the original foreclosure. Among other things, the

Lender submitted evidence that Keys Country and its officers had not listed the bay

bottom parcel as an asset in various matters filed after the foreclosure including tax




1
 The names of the parties have changed in the course of the litigation. The Lender,
Premier American Bank, the original plaintiff in the foreclosure action, changed its
name to Florida Community Bank. Florida Community Bank later transferred the
parcels to a related company, FCB Keys Country. FCB Keys Country sold the
properties to Overseas Highway which was ultimately substituted into the case as
plaintiff as successor-in-interest to FCB Keys Country.

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returns, bankruptcy filings, divorce disclosures, and the documents dissolving Keys

Country.

      In opposition, Keys Country submitted the affidavit of Sandy Segall, a

principal of Keys Country. According to Mr. Segall, the absence of the legal

description of the bay bottom parcel from the mortgage and its modifications was

not an error. To the contrary, he avers, Keys Country never intended to mortgage the

bay bottom parcel as part of the loan. The intent was to develop the bay bottom

separately and, regardless, the bay bottom had certain environmental issues that

prevented the Lender from accepting it as collateral. He explained that the bay

bottom parcel was absent from the various tax filings and disclosures because he and

others simply forgot that Keys Country owned the bay bottom parcel, likely because

its value at those times was minimal.

      The trial court granted summary judgment on the reformation claim. The

Lender then moved for summary judgment on the reforeclosure claim, which the

trial court also granted. This appeal followed.

                                        Analysis

      This Court reviews a trial court’s ruling on a motion for summary judgment

de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000). “Summary judgment is proper if there is no genuine issue of material fact and

if the moving party is entitled to a judgment as a matter of law.” Id. Summary



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judgment “is designed to test the sufficiency of the evidence to determine if there is

sufficient evidence at issue to justify a trial or formal hearing on the issues raised in

the pleadings.” The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). Because

summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper

only if, taking the evidence and inferences in the light most favorable to the non-

moving party, and assuming the jury would resolve all such factual disputes and

inferences favorably to the non-moving party, the non-moving party still could not

prevail at trial as a matter of law.” Moradiellos v. Gerelco Traffic Controls, Inc., 176

So. 3d 329, 334–35 (Fla. 3d DCA 2015).

      A court considering summary judgment must avoid two extremes. On one

hand, a “party should not be put to the expense of going through a trial, where the

only possible result will be a directed verdict.” Perez-Rios v. Graham Cos., 183 So.

3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess

Corp., 769 So. 2d 1105, 1108 (Fla. 4th DCA 2000)). On the other hand, “a motion

for summary judgment is not a trial by affidavit or deposition. Summary judgment

is not intended to weigh and resolve genuine issues of material fact, but only identify

whether such issues exist. If there is disputed evidence on a material issue of fact,

summary judgment must be denied and the issue submitted to the trier of fact.”

Perez–Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA 2017).




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      The overarching issue in this case is whether the absence of a legal description

for the bay bottom parcel from the original mortgage and its subsequent

modifications was intentional or due to a mutual mistake. We hold that the summary

judgment evidence submitted by the Lender was sufficient to meet its burden as

movant for summary judgment. It therefore became the burden of the Keys Country,

as the party opposing the motion, either to (1) file an affidavit indicating they needed

additional time to take identified discovery, pursuant to subsection (f) of the

summary judgment rule, Fla. R. Civ. P. 1.510.; or (2) file “summary judgment

evidence on which the adverse party relies,” pursuant to subsection (c) of the rule.

      Keys Country chose the second option and filed affidavits in opposition. In

this situation, the law of Florida shifts the burden to present evidence from the

movant to the party opposing summary judgment:

         If the moving party presents evidence to support the claimed
         non-existence of a material issue, he will be entitled to a
         summary judgment unless the opposing party comes forward
         with some evidence which will change the result - that is,
         evidence sufficient to generate an issue on a material fact.
         When analyzed in this fashion the summary judgment motion
         may be categorized as a “pre-trial motion for a directed
         verdict.” At least it has most of the attributes of a directed
         verdict motion.

         The initial burden, therefore, is upon the movant. When he
         tenders evidence sufficient to support his motion, then the
         opposing party must come forward with counter-evidence
         sufficient to reveal a genuine issue. The movant, however,
         does not initially carry the burden of exhausting the evidence
         pro and con, or even examining all of his opponent’s


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        witnesses. To fulfill his burden he must offer sufficient
        admissible evidence to support his claim of the non-existence
        of a genuine issue. If he fails to do this his motion is lost. If
        he succeeds, then the opposing party must demonstrate the
        existence of such an issue either by countervailing facts or
        justifiable inferences from the facts presented. If he fails in
        this, he must suffer a summary judgment against him.

Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-83 (Fla. 1965) (citations omitted).2

      In this regard, the Rule requires that “opposing affidavits must be made on

personal knowledge, must set forth such facts as would be admissible in evidence,

and must show affirmatively that the affiant is competent to testify to the matters

stated therein.” Fla. R. Civ. P. 1.510(e). In short, the affidavits opposing summary

judgment must identify “admissible evidence that creates a genuine issue of material

fact.” Panzera v. O’Neal, 198 So. 3d 663, 665 (Fla. 2d DCA 2015) (citing Byrd v.

Leach, 226 So. 2d 866, 868 (Fla. 4th DCA 1969)). The purpose of this requirement

is “to ensure that there is an admissible evidentiary basis for the case rather than

mere supposition or belief.” Alvarez v. Fla. Ins. Guar. Ass’n, Inc., 661 So. 2d 1230,



2
 Harvey Building has been continuously cited for over sixty years and remains the
black letter law today. See, e.g., The Fla. Bar v. Mogil, 763 So. 2d 303, 307 (Fla.
2000) (citing Harvey Building with approval); Landers v. Milton, 370 So. 2d 368,
370 (Fla. 1979) (same); Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d
383, 389 (Fla. 2d DCA 2018) (same); Cong. Park Office Condos II, LLC v. First-
Citizens Bank & Tr. Co., 105 So. 3d 602, 610 (Fla. 4th DCA 2013) (same); Juarez
v. New Branch Corp., 67 So. 3d 1159, 1160 (Fla. 3d DCA 2011) (same); Cassady v.
Moore, 737 So. 2d 1174, 1178 (Fla. 1st DCA 1999) (same); Magma Trading Corp.
v. Lintz, 727 So. 2d 377, 378 (Fla. 5th DCA 1999) (same).


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1232 (Fla. 3d DCA 1995) (quoting Pawlik v. Barnett Bank of Columbia Cty., 528

So. 2d 965, 966 (Fla. 1st DCA 1988)).

      Here, the affidavit of Mr. Segall contained testimony clearly be admissible at

trial. According to Mr. Segall, the upland parcels were to be developed separately

from the bay bottom parcel. The mortgage was obtained only to develop the upland

parcels. The bay bottom parcel was not included in the mortgage because it was

never intended to be included. Along with the simple fact that the legal description

of the bay bottom parcel was never included in the mortgage or subsequent

modifications, this testimony was sufficient to create a genuine issue of material fact

as to whether the absence of the legal description of the bay bottom parcel was

intentional or a mutual mistake. Questions regarding the relative credibility or

weight of the evidence cannot be resolved on summary judgment, but must be left

for the trier of fact. Hernandez v. United Auto. Ins. Co., 730 So. 2d 344, 345 (Fla.

3d DCA 1999) (“In ruling on a motion for summary judgment, it is well-established

that the court may neither adjudge the credibility of the witnesses nor weigh the

evidence.”).

      Because we conclude that the trial court erred in granting summary judgment

of reformation, we need not reach the other issues raised on appeal.

      Reversed and remanded.




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