Southern Waste Systems, LLC v. J & a Transfer, Inc. , 879 So. 2d 86 ( 2004 )

879 So.2d 86 (2004)

SOUTHERN WASTE SYSTEMS, LLC, a Florida limited liability company; Southern Waste Systems, Ltd., a Florida limited liability partnership; and Anthony Lomangino, Appellants,
v.
J & A TRANSFER, INC., a Florida corporation; J & A Recycling, Inc.; a dissolved Florida corporation; Riteway Recycling, Inc., a Florida corporation; NU-Way Recycling Corp., a Florida corporation; Magic Site Services, Inc., a Florida corporation; John Porter; and Anthony Masiello, Appellees.

No. 4D03-2202.

District Court of Appeal of Florida, Fourth District.

August 4, 2004.

Lawrence E. Brownstein of Lawrence E. Brownstein, P.A., West Palm Beach, and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellants.

Richard J. DeSanto, Fort Lauderdale, for Appellees-John Porter & Anthony Masiello.

ON MOTION FOR REHEARING

PER CURIAM.

We deny the motion for rehearing, but withdraw our opinion dated June 2, 2004, and substitute the following opinion in its place.

We affirm a final summary judgment in favor of J & A in this action to foreclose a mortgage. The mortgage arose out of a contract between the parties for Southern Waste's purchase of assets owned by J & A, including various businesses and real property.

The record reflects that Southern Waste's fraud claim was dismissed with leave to amend; however, Southern Waste failed to amend the claim. Further, although Southern Waste alleged fraud in the inducement as an affirmative defense, they asserted no facts in support of their general allegation that the contract was induced by false representations with respect to future business. There is also no indication of Southern Waste's ability to present evidence in support of the defenses.

Therefore, the record supports a conclusion that there are no genuine issues of material fact precluding summary judgment. See Holl v. Talcott, 191 So.2d 40, 45 (Fla.1966); Cufferi v. Royal Palm Dev. Co., Inc., 516 So.2d 983, 984 (Fla. 4th DCA 1987).

As to the other issues raised, we also find no reversible error and affirm.

STONE, STEVENSON and HAZOURI, JJ., concur.