
    D. Yogi GOSWAMI, Appellant, v. LENNOX INDUSTRIES, INC., Appellee.
    No. 1D05-5166.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    
      Gary S. E dinger and Bruce Brashear, Gainesville, for Appellant.
    David A. Cornell and Elizabeth M. Collins, of Dell Graham, P.A., Gainesville, for Appellee.
   BROWNING, C.J.

Appellant, D. Yogi Goswami, appeals an adverse summary judgment for Appellee alleging there is a genuine issue of material fact that precludes entry of a summary judgment. Because there are conflicting provisions in the Asset Purchase Agreement made by Lennox Industries, Inc. (Lennox), and Universal Air Technology, Inc. (Universal), that might necessitate introduction of parol evidence, we agree and reverse.

Appellant, the inventor of a patented air filtration and purification system (system), transferred ownership of the system and supporting patents to Universal. Appellant’s consideration for his transfer to Universal was less than 50 percent of its outstanding common stock, and, as additional consideration, a covenant that Universal pay to Appellant one percent of the gross revenues (royalty payments) received by Universal from all future sales of the system.

On February 28, 2002, Universal entered into an Asset Purchase Agreement providing for the transfer of the system and supporting patents to Lennox for $1,285,000. After the sale, Appellant demanded that Lennox pay to him the one percent royalties provided by Appellant’s and Universal’s agreement. Lennox refused and this litigation ensued.

Lennox argued below that Appellant was not a third-party beneficiary of the Asset Purchase Agreement and that Len-nox did not assume any liability for Universal’s obligation for royalty payments to Appellant. The trial court agreed and entered summary judgment for Lennox against Appellant. By so doing, the trial court reversibly erred.

Our standard of review is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001). Because the two contracts at issue here were made and performed in New Jersey and Delaware, we apply the laws of those two states. See Stone v. CompuServe Interactive Servs., Inc., 804 So.2d 383 (Fla. 4th DCA 2001).

The law governing entry of a summary judgment is the same in New Jersey as in Florida. That rule is so well-known that it need not be repeated here. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995).

As in Florida, New Jersey law holds that absent an ambiguity, a contract must be enforced as written. See Rahway Hosp. v. Horizon Blue Cross Blue Shield of N.J., 374 N.J.Super. 101, 863 A.2d 1050, 1056 (2005). Also, New Jersey law provides that where there are conflicting provisions in a written agreement that render the parties’ intent uncertain, it is necessary for an evidentiary hearing to be held, and the issue cannot be resolved on summary judgment. See id.

When these principles are applied here, it is clear that an ambiguity exists, or conflicting provisions exist, within the contracts that preclude a summary judgment.

The Asset Purchase Agreement provides:

“Assumed Liabilities ” shall have the meaning assigned to it in Section 2.0b. of this Agreement.
Section 2.04 Liabilities Assumed. On the Closing Date, subject to the terms and conditions herein set forth and as consideration for the Transferred Assets (in addition to the Purchase Price), Seller shall assign to Buyer, and Buyer shall assume from Seller, those liabilities associated with the Business existing prior to the Closing Date set forth on Schedule 2.0b and any liability associated with the Business or use of the Transferred Assets after the Closing Date (the “Assumed Liabilities”). Buyer’s assumption of the Assumed Liabilities shall be evidenced by the instrument of assumption in the form attached hereto as Exhibit A (the “Instrument of Assumption”).
SCHEDULE 2.04
ASSUMED LIABILITIES
1.All liabilities and obligations relating to the items on Schedule 2.02(b).
SCHEDULE 2.02(b) INTANGIBLE ASSETS
1. United States Patent Nos. 5,533,702; 5,993,738 and 5,835,840 (see attachment).
2. United States Trademarks for SUN-AIR, Registration Number 2,472,834; SUN-CENTRAL, Serial Number 75,765,664 and PHOTO-TECH, Registration Number 2,477,-454 (see attachment).
3. The attached foreign patent applications and registrations.

After considering these provisions, it is clear that Lennox assumed all liabilities (schedule 2.04) relating to the patents for the system. Since the only liability “relating” to the patents is Appellant’s royalty payments, an inference can be drawn that Lennox assumed liability for Appellant’s entitlement to the royalty payments. Of course, there are other contractual provisions of the Assets Purchase Agreement that imply a contrary conclusion and upon which the trial court relied in entering the contested summary judgment. However, such conflicts cannot be decided by summary judgment. The trial court was obligated to consider such conflicts, and all competent evidence germane to the parties’ intent before entering summary judgment.

Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

ERVIN, III, RICHARD W., Senior Judge, concurs.

BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

I respectfully dissent. I believe the trial court’s ruling in this case is eminently correct, and that requiring Lennox Industries, Inc., with whom Mr. Goswami had no agreement of any kind, to continue to defend this baseless lawsuit is an injustice. The learned trial judge explained:

This case involves a five count amended complaint brought by Plaintiff D. Yogi Goswami against Universal Air Technology, Inc., and Lennox Industries, Inc., Defendants. Plaintiff Gos-wami is the inventor of a process known as a photocatalytic system for indoor air quality to which he holds certain patents. Goswami, Louis Cohen and United Air Technology, Inc., entered into a business start-up agreement whereby Cohen contributed money and Goswami contributed his patented process to the corporation. They each received shares in the corporation in exchange for their contributions. They also each received options to purchase additional shares. As “additional consideration” to Gos-wami for contributing his patented process to the corporation, United Air Technology, Inc., agreed to pay Gos-wami additional compensation equal to one (1%) of the gross revenue received by the corporation for products, processes and application of the technology encompassed by the patents. As set forth in the start-up agreement, the principal purposes of Universal Air Technology, Inc., were to conduct research, form, fashion, construct, distribute and sell the photocatalytic oxidation and disinfectant process or devices covered by the patents. Other than Goswami’s entitlement to one percent (1%) of the revenue received by Universal Air Technology, Inc., for products, processes and application of the technology, and whatever dividends to which he was entitled as a shareholder, there were no other provisions in the start-up agreement specifically applicable to a further sale of the patented processes by United Air Technology to any other entity.
On February 28, 2002, Universal Air Technology entered into an asset purchase agreement with Lennox Industries, Inc., whereby Lennox acquired the patented processes owned by Universal. Through this lawsuit, Plaintiff attempts to hold Lennox responsible for paying a one percent (1%) royalty to Goswami based upon Lennox’s receipt of gross revenue from the patented technology. However, there is no provision in the asset purchase agreement which requires Lennox to pay Goswami such a royalty. Additionally, there is no provision in the start-up agreement between Goswami and Universal Air Technology which requires Universal Air to require such a royalty payment in the event of a sale of the technology to another entity. To the contrary, the only provision in the start-up agreement governing such an event would only require Universal Air Technology to give Goswami one percent (1%) of whatever it received as gross revenue from the sale. In this case, we are not dealing with a successor corporation which has either impliedly or expressly agreed to assume the obligations of it predecessor. To the contrary, Universal Air Technology and Lennox Industries, Inc., are separate corporate entities which merely engaged in a transaction to transfer assets. Plaintiffs entitlement to receive one percent (1%) of whatever United Air Technology, Inc., received and continues to receive for the sale of the subject technology to Lennox Industries is clearly set forth in the parties’ start-up agreement, and it is equally clear that Plaintiff is entitled to nothing from Lennox Industries, Inc. Accordingly, there is no genuine issue of material fact with respect to Defendant Lennox Industries’ alleged obligation or liability to Plaintiff Goswami, and said Lennox Industries, Inc., is entitled to summary judgment. ...

Mr. Goswami’s agreement was with United Air Technology, Inc. (UAT), not Lennox Industries, Inc. (Lennox). The trial court acknowledged that Mr. Goswami is entitled to one per cent of the sale proceeds UAT received from Lennox, but that is UAT’s obligation, not Lennox’s.

As a minority UAT shareholder, moreover, Mr. Goswami benefits from any increase in value in his UAT shares attributable to the sale of the technology. (If UAT’s sale to Lennox did not increase the value of UAT’s shares, Mr. Goswami should look to UAT’s management, not to Lennox.) Mr. Goswami never had any agreement with Lennox, and Lennox has never breached any agreement with anyone. The trial court ruled correctly and should be affirmed.  