Monday, July 13, 2009

Third Party Beneficiary, Requirements for Affidavit in Support of Summary Judgment, and Mutual Mistake

In Enterprise Leasing Co. v. Demartino (2D08-4433), the Second District reversed the trial court's grant of summary judgment because "the evidence was incompetent."

Issue 1: Standing of a Third Party Beneficiary

As an initial matter, we note that Enterprise has standing to challenge the entry of this final summary judgment. This court has held that an intended third-party beneficiary of a release has standing to enforce that release. See Olsen v. O'Connell, 466 So. 2d 352, 354 (Fla. 2d DCA 1985). This holding arises out of general principles of contract law, which provide that an intended third-party beneficiary of a contract may sue to enforce that contract. See, e.g., Marianna Lime Prods. Co v. McKay, 147 So. 264, 265 (Fla. 1933); M-I LLC v. Util. Directional Drilling, Inc., 872 So. 2d 403, 404-05 (Fla. 3d DCA 2004). Further, this court and others have held that when a release clearly states that it releases "all other persons and/or corporations who are or may be liable" for the subject damages, the other persons and corporations may be third-party beneficiaries of that release and thus have standing to enforce the release. See, e.g., Hester v. Gatlin, 332 So. 2d 660, 662 (Fla. 2d DCA 1976); Quarterman v. City of Jacksonville, 347 So. 2d 1036, 1038 n.2 (Fla. 1st DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So. 2d 393, 395 (Fla. 3d DCA 1976).

Issue 2: Requirements of Affidavit to Support Summary Judgment

The '[s]upporting 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 to testify to the matters stated therein.' Fla. R. Civ. P. 1.510(e) (emphasis added). When a supporting affidavit does not comply with these requirements, it is legally insufficient to support the entry of summary judgment in favor of the moving party.

Issue 3: Mutual Mistake

'A mistake is mutual when the parties agree to one thing and then, due to either a scrivener's error or inadvertence, express something different in the written instrument'...Thus, to prevail on their reformation count, the Demartinos were required to show that both they and Windsor Group intended to release only Windsor Group and that the release language stating otherwise was the result of inadvertence or a scrivener's error.

Here, the affidavits signed by the Demartinos and their counsel establish their intent to release only Windsor Group. However, no competent evidence established Windsor Group's intent...In light of Ragoza-Miller's lack of personal knowledge relating to Windsor Group's intent when the 1998 release was signed, her deposition testimony, like the affidavit testimony at issue in West Edge II, In re Forfeiture of 1998 Ford Pickup, and Zoda, is not competent evidence of Windsor Group's intent when it drafted and signed the 1998 release. Ragoza-Miller's testimony is thus incompetent to support the Demartinos' claim of mutual mistake. Because the Demartinos presented no other competent evidence to establish Windsor Group's intent, the trial court erred in entering summary judgment in their favor on their reformation count.

Issue 4: Summary Judgment for Non-Moving Party?

In this appeal, Enterprise argues that this court should not only reverse the summary judgment in favor of the Demartinos, but also should order the trial court to enter summary judgment in its favor on remand. This we cannot do. The supreme court has held that when a release has both written and preprinted provisions concerning the intended releasees, the intent of the parties as to who is to be released is a question of fact. See Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 434 (Fla. 1980) (holding that because the preprinted language routinely included in releases was often "boilerplate" language that did not necessarily reflect the intent of the parties, the presence of that "boilerplate" language could not be construed as a matter of law to reflect the parties' intent). Thus, when there are two types of release language—some written and some preprinted—within a single form, a latent ambiguity exists that requires the parties' intent to be determined as a matter of fact. Id.

Here, like the release at issue in Hurt, the 1998 release contains both written and preprinted terms within a single form. Pursuant to Hurt, the "boilerplate" release of other entities cannot be construed to release Enterprise as a matter of law. Instead, the question of whether both the Demartinos and Windsor Group intended to release entities other than Windsor Group is a question of fact. Accordingly, on this record, Enterprise is not entitled to summary judgment in its favor on remand.


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