Opinion
No. 70-757.
March 12, 1971.
Appeal from the Court of Record, Brevard County, Joe A. Cowart, Jr., J.
Lealand L. Lovering, of Cone, Wagner, Nugent, Johnson, McKeown Dell, Rockledge, for appellant.
George Ritchie, of Ritchie Quigley, Cocoa, for appellee.
This is an interlocutory appeal by appellant-defendant, Raymond T. Brown, from the entry of a partial summary judgment on the issue of liability in favor of the appellee-plaintiff, Warren Wooten Ford, Inc., in an action for a deficiency judgment allegedly resulting from a breach of an automobile retail installment contract. We reverse.
We do so because there exists a genuine issue of a material fact as to whether there was a public sale of the repossessed vehicle. See Great Dane Trailers, Inc. v. A-1 Truck Rentals, Inc., Fla.App. 1970, 232 So.2d 762. The existence of a genuine issue as to a material fact bars the granting of a summary judgment. Leaks v. Adeimy, Fla.App. 1967, 195 So.2d 47; O'Grady v. Wickman, Fla.App. 1968, 213 So.2d 321; Holl v. Talcott, Fla. 1966, 191 So.2d 40.
The above issue was not negated by the pleadings, depositions and answers to requests for admission on file apart from defendant's affidavit opposing the motions, which was the subject of some dispute between the parties.
Reversed and remanded.
CROSS, C.J., REED, J., and McDONALD, PARKER LEE, Associate Judge, concur.