Ross v. Nelson
Ross v. Nelson
Opinion of the Court
Appellant seeks review of an adverse summary final judgment rendered in favor of appellees. It is contended that the court erred in finding that appellees were entitled to judgment as a matter of law on the facts disclosed by the record at the time the motion was heard.
This is a suit brought by appellees to quiet their title to a parcel of land in Santa Rosa County. The complaint alleges that defendant purports to own or hold an option allegedly signed by plaintiffs agreeing to convey to him an oil and mineral lease on property owned by plaintiffs as an estate by the entireties and occupied by them as their homestead. The complaint alleges that the purported option sought to be cancelled as a cloud on their title was not signed by the plaintiff wife, Hattie Nelson, nor was any consideration paid to them by defendant for it. By his answer defendant denied that the option was not properly and legally executed by plaintiffs and alleged that, although no consideration was paid for the option, he nevertheless treated it as a continuing offer which he accepted within the time period limited therein and is therefore entitled to specific performance.
In support of plaintiffs’ motion for summary judgment, they submitted their affidavit which unequivocally avers that the purported option was not signed by plaintiff wife nor in her name by anyone with her knowledge and consent. The only responsive proof offered by defendant in denial of this averment was the affidavit of his agent which states that at the time he received the option from plaintiffs, it had “apparently” been signed by the plaintiff wife. The trial court appeared to be primarily concerned with whether any consideration had been paid by defendant to plaintiffs for the option in question. When defendant admitted that no consideration as such had been paid, the trial court rendered summary judgment in favor of plaintiffs on that ground alone.
By his amended answer appellant did allege as an affirmative defense that although he paid no consideration to appel-lees for the option in question, he nevertheless accepted it in a manner and form agreeable to its terms and conditions prior to its withdrawal by appellees and, therefore, he is entitled to specific performance of the option agreement despite the lack of consideration. This allegation, although not replied to by appellees as a matter of pleading, was nevertheless denied by operation of the rule of civil procedure which provides that averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
Furthermore, the proof before the trial court included an affidavit by appel-lees that the wife, Hattie Nelson, did not sign the option nor was it signed by anyone with her knowledge and consent. The only proof submitted by appellant in opposition to appellees’ contention with regard to the lack of execution of the option was an affidavit of his agent which merely averred that appellee-wife had “apparently” signed the option. This was not sufficient to create a genuine issue of fact with regard to the lack of execution of the option by appellee-wife, so the lack of proper execution was in itself sufficient to support the summary judgment appealed herein.
For the foregoing reasons, the summary judgment challenged by appellant was properly rendered and is therefore affirmed.
. Koplin v. Bennett, (Fla.App. 1963) 155 So.2d 568.
. Rule 1.110(e), Florida Rules of Civil Procedure, 30 F.S.A.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.