Opinion
Case No. 3D05-1890.
Opinion filed February 15, 2006.
An Appeal from the Circuit Court for Miami-Dade County, Maxine Cohen Lando, Judge, Lower Tribunal No. 04-12327.
Stephen Douglas Fromang (Vero Beach), for appellant.
Kirkpatrick Lockhart Nicholson Graham and William P. McCaughan; Krinzman Huss Lubetsky and Cary Lubetsky; Simon, Schindler Sandberg and Roger J. Schindler and Jose Manuel Sanchez, for appellees.
Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
Dennis Trage ("Trage") appeals the trial court's order granting 311 Meridian's ("Meridian") motion for partial summary judgment. We affirm.
Trage contends that the trial court erred by granting Meridian's motion for partial summary judgment because Trage raised an unresolved issue of material fact. Meridian asserts that summary judgment was appropriate because no issue of material fact remains unresolved on the contested point.
Dennis Trage's mother, Judith Trage ("Judith"), and her son-in-law, Patrick Mullen ("Mullen"), are the sole owners of Atlantic South Beach Properties ("ASBP"). ASBP is registered in Florida as a limited liability company pursuant to section 608, Florida Statutes (2003). Meridian entered into a series of agreements with ASBP regarding the purchase of a piece of real estate. Trage alleges that Judith assigned ASBP's interest in the agreements to him. Trage filed a complaint against Meridian for specific performance and/or damages alleging that he was entitled to the real estate that was the subject of the agreement between ASBP and Meridian. Meridian filed a counterclaim for declaratory judgment asserting, in part, that Judith had no authority to execute the assignment to Trage and that such authority rested solely with Mullen, ASBP's managing member. The trial court granted Meridian's motion for partial summary judgment after finding no issue of material fact and concluding that Mullen is the managing member.
We affirm the trial court's order because there is no material issue regarding Judith's lack of authority to make the assignment on behalf of ASBP. In Florida limited liability companies, matters concerning the business are determined by the managing member. See § 608.422, Fla. Stat. (2003). Judith executed the assignment at issue as "secretary" and "president" of ASBP without Mullen's knowledge and absent any consideration. Judith later signed an affidavit prepared by ASBP's counsel stating that Mullen is the company's managing member, and that Judith has no authority to assign ASBP's rights. Mullen's affidavit states that he has been the sole managing member since ASBP's inception. Documents filed with the State of Florida show Mullen as the only managing member. Judith later disavowed her sworn affidavit in a deposition, stating only that she signed the affidavit without reading it.
Judith's assertion that her own previous affidavit is untrue and that she signed it without reading it is insufficient to create a factual dispute on the issue of her authority within ASBP. See Allied Van Lines, Inc. v. Bratton, 351 So. 2d 344 (Fla. 1977) (failing to read an affidavit before signing it is no defense); Soler v. Secondary Holdings, Inc., 771 So. 2d 62 (Fla. 3d DCA 2000) (where there is no credible explanation for discrepancies between earlier testimony and later testimony, the later testimony is stricken). As Judith was not the managing member, any assignments she purportedly made to Trage are invalid. Therefore, we affirm the trial court's partial summary judgment declaring that Mullen is ASBP's managing member and that the assignments made by Judith to Dennis Trage are invalid.
Affirmed.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.