FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Thomas H.
A. Staack and Kristine M. Reighard of Staack, Simms &
Reighard, PLLC, Clearwater, for Appellant.
Derrick M. Valkenburg of Shutts & Bowen, LLP, Orlando;
and Joshua D. Miron of Shutts & Bowen, LLP, Fort
Lauderdale (substituted as counsel of record), for Appellee
Karen K. Harte.
appearance for remaining Appellees.
ROTHSTEIN- YOUAKIM, Judge.
Holding, Inc. (Southgate), appeals a partial final summary
judgment awarding Karen K. Harte $100, 000 plus interest on
her claim of breach of a partial assignment of a note and
mortgage. Southgate argues that Harte failed to satisfy her
burden of proving that there is no genuine issue of material
fact regarding Southgate's affirmative defense of failure
of consideration. We agree, and we reverse.
pertinent facts are these:
Georgiou, Flora Georgiou, and Anclote Marine Ways, Inc., a
Florida Profit Corporation of which the Georgious were both
officers, executed a $650, 000 balloon note and mortgage in
favor of various persons and entities, including Southgate.
The mortgage identified certain parcels located in Pinellas
County, Florida. In April 2010, Tim Diego, Southgate's
only officer, executed on Southgate's behalf a partial
assignment of its interest in the note and mortgage to Harte
for consideration of $100, 000.
note ultimately was paid off, Diego executed a full
satisfaction of the note and mortgage on Southgate's
behalf, and the balloon payment was disbursed to the original
holders, including Southgate. Thereafter, Harte filed suit
against Southgate, Diego, and Windgate Global, LLC
(Windgate), of which Diego is also the only officer, alleging
that Southgate had failed to acknowledge its partial
assignment of its interest to her and had instead forwarded
her share to Windgate. Southgate answered that it had never
received any of the money that Harte had agreed to pay for
the partial assignment of its interest.
filed a motion for summary judgment accompanied by multiple
affidavits, including her own, and various documents that she
asserts establish Southgate's acknowledgment of her $100,
000 investment. She also subsequently filed her answers to
Southgate's interrogatories. Southgate offered no legal
argument in response but filed an affidavit from Diego-in
which he averred that, among other things, Southgate had
"not [been] aware" of Harte's purported
interest-and two documents, one of which assertedly showed
that on May 3, 2010, Harte had attempted to wire $100, 000 to
Southgate but that the attempt had failed due to insufficient
judgment is proper only where the moving party shows
conclusively that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of
law." Coral Wood Page, Inc. v. GRE Coral Wood,
LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011) (first citing
Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966); then
citing Fla. R. Civ. P. 1.510(c)). Because Southgate alleged
failure of consideration as an affirmative defense,
Harte's burden included conclusively refuting the factual
basis for that defense. See id. (citing Morroni
v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d
DCA 2005)). This is a high burden, as "the merest
possibility of the existence of a genuine issue of material
fact precludes the entry of final summary judgment."
Estate of Githens ex rel. Seaman v. Bon Secours-Maria
Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274
(Fla. 2d DCA 2006) (quoting Nard, Inc. v. DeVito
Contracting & Supply, Inc., 769 So.2d 1138, 1140
(Fla. 2d DCA 2000)).
trial court's written order did not explain its reasoning
in determining that no genuine issue of material fact existed
as to Harte's claim for breach of the partial assignment,
and we do not have a transcript of the summary judgment
hearing. Upon our de novo review of the motion and
the summary judgment evidence, however, we conclude that
Harte has failed to establish that no genuine issue of
material fact remains concerning whether Southgate ever
received the $100, 000 that Harte promised to pay for the