Biltmore Village, Inc. v. Bacon

CARROLL, CHAS., Chief Judge.

This is an appeal from a summary final decree of the Circuit Court of Dade County, removing deed restrictions and a right of reverter incident thereto from a lot owned by the Appellees, who were the plaintiffs. The Appellant is a successor in interest to the subdivider who originally imposed the restrictions. The question of the correctness of the ruling granting the plaintiff’s motion for summary final decree is raised under the Appellant’s first four assignments of error.

Allegations of changed circumstances and conditions relating to the property and surrounding area were denied in the answer, which averred some facts to the contrary.

The motion for summary final decree was opposed by defendant with an affidavit of one J. J. Lamb, setting out certain facts relied on by defendant to establish the absence of any changes which would warrant or require removal of the restrictions.

The answer and the Lamb affidavit raised genuine issues of fact on that material feature of the suit, and, therefore, the motion for summary final decree should not have been granted. See Wilson v. Bachrach, Fla. 1953, 65 So.2d 546; Johnson v. Studstill, Fla.1954, 71 So.2d 251, 253; and Jones v. Stoutenburgh, Fla.1957, 91 So. 2d 299, 302.

In view of this disposition of the appeal in this case, other questions presented are not required to be determined.

Reversed and remanded for further proceeding consistent herewith.

HORTON and PEARSON, JJ., concur.