Opinion
Case No. 2D19-979
03-18-2020
John LUPO, Appellant, v. Jennifer LAWSON, Appellee.
David W. Smith of the Law Office of David W. Smith, Sarasota, for Appellant. Melissa Karp Elsbree of Karp Law, Venice, for Appellee.
David W. Smith of the Law Office of David W. Smith, Sarasota, for Appellant.
Melissa Karp Elsbree of Karp Law, Venice, for Appellee.
SLEET, Judge.
John Lupo challenges the order granting final summary judgment in Lawson's action for partition of residential property owned by both parties. Because the trial court erred in granting summary judgment when genuine issues of material fact remain, we reverse and remand for further proceedings.
On March 10, 2016, Lupo and Lawson purchased a residential property as joint tenants with the right of survivorship. On September 7, 2018, Lawson filed an action seeking a court-ordered partition of the property and a fifty/fifty distribution of the proceeds from the sale. Lupo filed an answer and raised multiple affirmative defenses. Lawson then filed a motion for summary judgment alleging that both parties owned an undivided one-half interest in the property and that, therefore, each party was entitled to disbursement of fifty percent of the net sale proceeds. Lawson did not file any sworn affidavits in support of her motion.
Lupo filed a response in opposition, arguing that Lawson's motion should not be granted because genuine issues of material fact existed with respect to the proper allocation of funds from the sale of the property. Lupo also filed his sworn affidavit in support of his response in opposition. In the affidavit, Lupo attests that he supplied the initial deposit and down payment for the property in the amount of $77,792.59, while Lawson provided no money for the down payment. He also attested that since March 4, 2018, rather than splitting the expenses equally between himself and Lawson as he had initially intended, Lupo paid one half of the mortgage and all of the utilities and maintenance.
Following a hearing on January 30, 2019, the trial court entered an order granting Lawson's motion for summary judgment. The order does not specify each party's ownership percentage, nor does it state how net proceeds from the sale of the property should be divided between Lupo and Lawson. However, we conclude that since Lawson's motion requests a fifty/fifty split, the trial court so ruled when it granted the motion. This was error.
A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Raissi v. Valente, 247 So. 3d 629, 631 (Fla. 2d DCA 2018) (quoting Estate of Githens ex rel. Seaman v. Bon Secours–Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) ); see also Fla. R. Civ. P. 1.510(c). "If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007) (quoting Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979) ).
Prior to allocating proceeds from a partition sale, the trial court must first "determine each party's percentage of ownership of the property." O'Donnell v. Marks, 823 So. 2d 197, 199 (Fla. 4th DCA 2002). Then, it must "determine the reimbursable expenses incurred after closing and calculate each party's proportionate share using each party's percentage of ownership." Id.; see also Fernandez v. Marrero, 282 So. 3d 928, 930 (Fla. 3d DCA 2019) ("In a partition proceeding, there must be an accounting to determine whether each co-tenant has paid his or her proportionate share of the expenses of the property, and to adjust the co-tenants' accounts accordingly.").
Here, the record indicates that Lupo opposed the motion for summary judgment with evidence, by way of affidavit, that he provided the down payment for the property and paid for all of the utilities and maintenance after closing. He argues that he should be entitled to more than fifty percent of the net proceeds from the sale based on his expenditures. We find this evidence to be sufficient to create a genuine issue of material fact with respect to the proper allocation of funds from the sale of the property. Accordingly, we find that the trial court erred in granting final summary judgment in favor of Lawson and reverse and remand for further proceedings.
Reversed and remanded.
BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.