
    Samuel J. LEVY, Milton M. Farber and M. Mac Schwebel, Appellants, v. Michel A. PICARD, Appellee.
    No. 78-2223.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    
      Richard W. Groner of Moyle, Gentry, Jones, Flanigan & Groner, P.A., West Palm Beach, for appellants.
    John L. Bryan, Jr. of Scott, Burke, Royce & Harris, P.A., Palm Beach, for appellee.
   LETTS, Chief Judge.

We are of the opinion that the judgment granted by the trial court should be reversed because factual issues exist which cannot be resolved by summary judgment.

We see no need for protracted recitation of all the facts. Suffice it to say that the dispute concerns whether an investor, withdrawing from a small corporation, was entitled to a return of his investment from the remaining stockholders as individuals, from the corporate entity or a combination of both.

A letter written by the corporate attorney to the remaining investors asked for written approval of the plan outlined to him by the withdrawing investor, so that the latter could have his $73,333.33 investment returned to him. The full text of the letter is as follows:

Mr. Samuel J. Levy
359 Martling Avenue
Tarrytown, New York 10591
Mr. Michel A. Picard
Sherbrooke Golf & Country Club, Inc.
6151 Lyons Road
Lake Worth, Florida 33463
Mr. M. Mac Schwebel
2 Leith Place
White Plains, New York 10605
Mr. Milton M. Farber
6 Corwood Road
Bronxville, New York 10708
Gentlemen:
Mr. Picard visited our offices on November 1, 1977 and informed me that you have each mutually agreed to terminate [the] Agreement of August 3, 1977. Specifically:
1. The $73,333.33 previously contributed by Mr. Picard will be returned to him forthwith,
2. He will have no further obligation to contribute funds to Sherbrooke Golf & Country Club, Inc., and,
3. He will receive no shares of stock in Sherbrooke Golf & Country Club, Inc.
If this letter correctly reflects the understanding and agreement of all four parties, please execute a copy of this letter and return it to my office.
With kindest regards, I remain
Yours truly,
/s/ RICHARD W. GRONER
RWG/sz
tai SAMUEL J. LEVY
/s/ MICHEL A. PICARD
/s/ M. MAC SCHWEBEL
/a/ MILTON M. FARBER

Pursuant to the last paragraph of the letter, it was forwarded to all the remaining four investors who duly signed in the spaces provided and returned it, thereby indicating approval of its terms.

From this set of circumstances the trial judge deduced as a matter of law that the refund was to be made exclusively by the remaining stockholders as individuals, despite the fact that $44,000 of the $73,333.33 has in truth been returned by the corporation, not by any individual.

We see nothing in the letter or its approval which established that the remaining investors would individually return the money. They did not write this letter, it was written to them and it merely asked the remaining investors if it was correct that the withdrawing investor was to get his money back and if so to confirm it. It is true that the withdrawing investor filed an affidavit in support of his motion for summary judgment, however although a reasonable interpretation of that affidavit would be that it was remaining investors individually who were responsible, both pertinent paragraphs in the affidavit quote, as authority for the individual liability, the above reproduced letter, which simply does not support any such conclusion.

We therefore hold that it cannot be said as a matter of law that the balance owed is the individual responsibility of the remaining investors and we believe there are genuine issues of material facts as to how and by whom the refund is to made.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

DOWNEY, J., concurs with LETTS, C. J., and concurs specially.

HURLEY, J., dissents with opinion.

DOWNEY, Judge,

concurring specially.

I agree entirely with the opinion authored Chief Judge Letts. However, I believe the case for reversal is even stronger when one considers the deposition of M. Mac Schwebel. The record shows the original of that deposition was not on file at the time of the summary judgment hearing, but, using their copies of the deposition, the parties argued the evidence contained therein as though it were on file. The evidence in the deposition raises genuine issues of material fact, and thus the record here and that argued before the trial judge demonstrates that there are genuine issues to be tried.

HURLEY, Judge,

dissenting.

I respectfully dissent. In my opinion the majority fails to consider plaintiff’s uncon-tradicted affidavit which resolves any ambiguity as to who owes the money, and conclusively entitles the plaintiff to summary judgment.

Michel Picard intended to buy into Sher-brooke Golf & Country Club, Inc. and to this end he contributed $73,333.33 in cash and signed a note for $60,000.00. Sometime later he changed his mind and requested his money back. At this point, Picard, Levy, Schwebel and Farber executed the letter-document referred to in the court’s opinion. As a result of this agreement, Picard received approximately $44,000.00, which left a balance due of $29,000.00. When this was not paid, Picard instituted suit against the corporation and its three individual stockholders (Levy, Schwebel and Farber).

On August 15, 1978, pursuant to applicable rules of civil procedure, Picard filed a motion for partial summary judgment as to that count in his complaint which concerned only the three individual defendants. He attached an affidavit to his motion wherein he stated, “On November 1, 1977 SAMUEL J. LEVY, M. MAC SCHWEBEL, and MILTON M. FARBER agreed to return to me ‘forthwith’ the sum of $73,333.33. . .” . . [TJhere is still due and owning from the Defendants to me the sum of $29,000.00. ...”

Apparently operating under the assumption that their depositions, which had been taken earlier, were on file, defendants did not respond to Picard’s affidavit. No counter-affidavits or other sworn denials were filed. To further complicate matters, when the court heard the motion on September 15,1978, both sides labored under the belief that Schwebel’s and Levy’s depositions were on file and would be considered by the court. On September 19, 1978, however, when the court entered its order granting summary judgment, neither deposition had been filed.

Court records reflect that Schwebel’s deposition was filed on January 18, 1979, four months after the summary judgment hearing. Levy’s deposition was filed on March 19,1980, a year and a half after the summary judgment hearing and fourteen days after appellate oral argument. As mentioned before, both depositions had been taken pri- or to the summary judgment hearing: Schwebel’s on April 26, 1978; Levy’s on May 8, 1978.

The following chronology recapitulates and hopefully clarifies the sequence of events:

April 26,1978 — Schwebel’s deposition.
May 8, 1978 — Levy’s deposition.
August 15,1978 — Picard’s motion for partial summary judgment accompanied by affidavit and notice of hearing.
September 15,1978 — Hearing on summary judgment.
September 19,1978 — Order on partial summary judgment.
January 18,1979 — Schwebel’s deposition filed.
March 5,1980 — Appellate oral argument.
March 19,1980 — Levy’s deposition filed.

First, and with due respect to the court, I suggest that the ambiguity perceived and relied upon by the majority is illusory. It exists only because the court turns a blind eye to Picard’s definitive and verified statement that “the Defendants [owe me] the sum of $29,000.00. . . Nothing in the record contradicts this sworn statement. Thus, I submit, the trial court was eminently correct in granting partial summary judgment.

Whether the depositions which have now been filed reveal the existence of a genuine issue of material fact is a question which should not be treated for the first time on appeal. It is axiomatic that “this is not a trial court, but a court of review. Our review is limited to a determination of whether errors were committed by the trial judge.” Fauls v. Sheriff of Leon County, 384 So.2d 238, 239 (Fla. 1st DCA 1980). Thus, I would affirm the decision of the trial court but without prejudice to appellants/defendants’ right to file a motion with the trial court pursuant to Rule 1.540(b), Fla.R.Civ.P., to open the judgment and permit the court to include and consider the Schwebel and Levy depositions. This course would require the defendants to establish mistake, inadvertence, surprise or excusable neglect for failing to file the depositions. If it were determined that the duty to file belonged to another, it would be incumbent upon defendants to explain their failure to discover the void in the record and to take timely action to correct it. In any event, these are matters which should be left for the trier of fact in a subsequent proceeding.  