Third District Court of Appeal
State of Florida
Opinion filed December 27, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1337
Lower Tribunal No. 12-12508
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Lazar Leybovich, et al.,
Appellants,
vs.
SecureAlert, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.
Marshall Socarras Grant, P.L., and Joe M. Grant (Boca Raton); Cooney
Trybus Kwavnick Peets, PLC, and Warren B. Kwavnick and Kelly Lenahan (Fort
Lauderdale), for appellants.
Philip D. Parrish, P.A., and Philip D. Parrish; Wilson Elser Moskowitz
Edelman & Dicker, and John Y. Benford (Orlando), for appellee.
Before SUAREZ, LAGOA and SCALES, JJ.
SCALES, J.
Lazar, Dovie and Ben Leybovich, the plaintiffs below, appeal an order
granting final summary judgment in favor of SecureAlert, Inc., the defendant
below, on their claim for breach of contract. The Leyboviches argue that: (i) the
trial court’s sua sponte reconsideration of SecureAlert’s, Inc.’s motion for
summary judgment violated their due process rights; (ii) the trial court erred, as a
matter of law, in finding that their breach of contract action was barred by a release
contained in a prior settlement agreement between the parties; and (iii) there are
issues of material fact that must be resolved by a jury. Because we agree with the
Leyboviches that material issues of fact preclude summary judgment, we reverse
the order granting final summary judgment and remand for a trial.1
A careful review of the appellate record reveals genuine issues of material
fact as to whether: (i) the Leyboviches signed and delivered the December 2007
Stock Redemption Agreements – the agreements on which this breach of contract
action is based – to SecureAlert; (ii) the Leyboviches executed and returned their
respective stock certificates to SecureAlert pursuant to the December 2007 Stock
Redemption Agreements; and (iii) the Leyboviches, by their conduct, are
precluded from maintaining this breach of contract action under the doctrines of
estoppel and waiver. While Lazar Leybovich’s affidavit and interrogatory
responses may be scant evidence on these issues, it is nevertheless sufficient
1We need not, and therefore do not, reach the other appellate issues raised by the
Leyboviches.
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evidence to raise issues of fact so as preclude entry of final summary judgment in
favor of SecureAlert on any of these three grounds. See Piedra v. City of N. Bay
Vill., 193 So. 3d 48, 51 (Fla. 3d DCA 2016) (“If the record on appeal reveals the
merest possibility of genuine issues of material fact, or even the slightest doubt in
this respect, the summary judgment must be reversed.”); Carnes v. Fender, 936 So.
2d 11, 14 (Fla. 4th DCA 2006) (“Such evidence is sufficient to constitute the
scintilla of appreciable evidence required to defeat a motion for summary
judgment.”).
Accordingly, we reverse the final summary judgment entered in favor of
SecureAlert.
Reversed and remanded.
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