Opinion
Nos. 82-78, 82-260.
December 15, 1982.
Appeal from the Circuit Court, Broward County, Eugene S. Garrett, J.
William C. Purcell, Fort Lauderdale, for appellant.
Charles A. Goff of Casoria, Goff Freidman, Fort Lauderdale, for appellees Saviano.
William H. Kilby, Fort Lauderdale, for appellee Gentile.
These are consolidated appeals from a final summary judgment denying the appellant's action to foreclose a chattel mortgage. We reverse. There is evidence in the record that the appellees violated the terms of a security agreement which prohibited the sale of the secured property without the consent of the appellant. The appellees, in this court and below, have raised issues as to the enforceability of this provision under the factual circumstances of this case and as to waiver and estoppel. However, on the present record we cannot say that the appellees are entitled to prevail as a matter of law. Rather, the record reflects triable issues as to the entitlement of appellant to foreclose and the theories of defense asserted by the appellees. See, e.g., Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).
Accordingly, this cause is reversed for further proceedings consistent herewith.
ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.