In Berkowitz v. Delaire Country Club, Inc., 4D11-3858, 2012 WL 5232251 (Fla. 4th DCA 2012), Stuart Berkowitz (“Berkowitz”), a member of the Delaire Country Club, Inc. (the “Club”), proposed 17 amendments to the Club’s articles of incorporation in a 52-page packet. The Club asked that Berkowitz submit only a single page addressing each proposed amendment because the Club claimed the 52-page packet was too lengthy and difficult to understand. Berkowitz, however, resubmitted much of the same 52-page packet with a color-coded legend separating its materials. The resubmission was rejected because the Club claimed that it was vague, confusing, subject to multiple interpretations and exceeded the single page limit. Berkowitz then filed a complaint seeking declaratory and injunctive relief claiming that the Club failed to follow the required procedure under its articles of incorporation and by-laws. The trial court granted the Club’s motion for summary judgment, which Berkowitz appealed. Florida’s Fourth District Court of Appeal reversed the granting of the motion for summary judgment and remanded the case to the trial court.
The trial court concluded that the failure of the Articles of Incorporation and By-laws to address the scope and format of the materials which a member could submit created a latent ambiguity. Where a contract is ambiguous, summary judgment is generally improper. However, if a party moving for summary judgment presents competent evidence, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue, and it is insufficient for the opposing party to merely assert that an issue exists.
In order to resolve the ambiguity, the Club offered purported past submissions by other Club members; no affidavit or other evidence established that the attachments were what they purported to be. The purported past submissions were unauthenticated and were not competent evidence. Therefore, the purported past submissions could not be used to resolve the latent ambiguity, and it was held that the trial court erred in considering unauthenticated attachments to resolve the contractual ambiguity.
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