NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

SEAN M. LUCEY & LUCEY ) 

CORPORATION, ) 

 ) 

 Appellants, ) 

 ) 

v. ) Case No. 2D15-5325 

 ) 

1010 LOGIC, INC., ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed January 20, 2017. 

Appeal from the Circuit Court for Pinellas 

County; Thomas H. Minkoff, Judge. 

Kathleen S. Lucey, Saint Petersburg, 

for Appellants. 

Jason H. Baruch and Patrick M. Chidnese 

of Holland and Knight LLP, Tampa, 

for Appellee. 

LUCAS, Judge. 

 Sean M. Lucey and Lucey Corporation (collectively, "Lucey"), the 

defendants below, appeal the entry of a final summary judgment entered in favor of 

1010 Logic, Inc. in its breach of contract lawsuit. Lucey raises several issues on 

appeal, but we find merit in only one. The circuit court erroneously entered summary 
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judgment on one of Lucey's affirmative defenses where 1010 Logic failed to 

conclusively refute that no disputed issue of material fact existed as to that defense. 

 The facts of this case stem from a software design and technical support 

agreement between Lucey and 1010 Logic concerning a project for one of Lucey's 

customers. Under the terms of the contract,1 1010 Logic agreed to provide the services 

of a software developer, Deepak Krishnamoorthy, to assist with Lucey's technical 

design and support for Lucey's customer, Belk Stores Services, from January through 

September 2013. In addition to describing the scope of services to be provided, the 

contract included qualitative requirements for Mr. Krishnamoorthy's work that would be 

outlined and later reviewed by one of Belk's employees, Balaji Raman.2 According to 

the contract, Mr. Krishnamoorthy's services were to be performed "in accordance with 

the [a]greement and the service levels, specifications, and timeframes set forth in each 

[o]rder, and in accordance with performance measurements," and the software code he 

created was to "be free of defects in workmanship, design, and material." Furthermore, 

under the contract, Lucey would not be required to pay for any services that did not 

meet the contract's requirements or the standards imposed by Mr. Raman. 

 Dissatisfied with Mr. Krishnamoorthy's level of performance, Lucey 

withheld payment for the final three months of the contract and—apparently at Belk's 

direction—purported to terminate Mr. Krishnamoorthy's services under the contract in 

 

 1Both Lucey and 1010 Logic appear to acknowledge that the contractual 

documents at issue comprised both a general services agreement dated December 18, 

2012, and a subsequent statement of work issued from 1010 Logic, pursuant to that 

agreement. We use the term "contract" in this opinion to refer to both collectively. 

 2The parties mutually agreed upon Mr. Raman's designation under the 

contract as the "subject matter expert" for Belk's software project. 
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September 2013. 1010 Logic then filed a complaint in the circuit court against Lucey for 

nonpayment under the contract. In response, Lucey denied breaching the contract and 

asserted several affirmative defenses, including the defense—albeit somewhat inartfully 

articulated—that 1010 Logic failed to render substantial performance under the terms of 

the contract. 

 1010 Logic filed a motion for partial summary judgment, which the court 

heard during a pretrial conference. In its motion, 1010 Logic sought summary judgment 

on its breach of contract claim and all of Lucey's affirmative defenses, and it filed 

summary judgment evidence, including Messrs. Lucey's and Raman's depositions, prior 

to the hearing. However, the motion offered only three points that were pertinent to 

Lucey's substantial performance defense; according to 1010 Logic, (1) Lucey had 

received full payment from Belk for Mr. Krishnamoorthy's work, (2) Lucey did not 

terminate Mr. Krishnamoorthy's service until the end of the contract, and (3) Mr. Raman 

expressed regret for not doing more to supervise Mr. Krishnamoorthy. For its part, 

Lucey never identified any summary judgment evidence, see Fla. R. Civ. P. 1.510(c), 

but argued at the hearing that Mr. Raman's deposition refuted 1010 Logic's summary 

judgment arguments as to Lucey's substantial performance defense.3 The circuit court 

granted 1010 Logic's motion and entered a final judgment in its favor, but neither the 

 3Had Lucey complied with rule 1.510(c)'s strictures, Lucey would have had 

ample material within Mr. Raman's deposition to demonstrate material facts in dispute 

regarding this defense. In his deposition, Mr. Raman explained that there were several 

issues in the code Mr. Krishnamoorthy wrote; that Mr. Krishnamoorthy did not properly 

test the code before its implementation; that Mr. Krishnamoorthy did not meet the 

"business requirements that were provided to him"; that after the code "went live," 

additional defects were discovered; and that, had Mr. Raman himself completed the 

work in the same manner as Mr. Krishnamoorthy, he "would not [expect] to be . . . paid." 
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order granting summary judgment nor the final judgment specifically addressed any of 

Lucey's affirmative defenses. 

 Our court summarized the standard of appellate review for summary 

judgment rulings on affirmative defenses in Coral Wood Page, Inc. v. GRE Coral Wood, 

LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011): 

Summary judgment is proper only where the 

moving party shows conclusively that there are no genuine 

issues of material fact and that it is entitled to judgment as a 

matter of law. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); 

Fla. R. Civ. P. 1.510(c). When the nonmoving party has 

alleged affirmative defenses, the moving party must 

conclusively refute the factual bases for the defenses or 

establish that they are legally insufficient. Morroni v. 

Household Fin. Corp. III, 903 So. 2d 311, 312 

(Fla. 2d DCA 2005). "The burden of proving the existence of 

genuine issues of material fact does not shift to the opposing 

party until the moving party has met its burden of proof." 

Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 

(Fla. 2d DCA 2008). 

(Emphasis added.) We have stated, repeatedly, that "[i]f the record reflects the 

existence of any genuine issue of material fact or the possibility of any issue, or if the 

record raises even the slightest doubt that an issue might exist, summary judgment is 

improper." Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d 

DCA 2015) (quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)); see 

also LoBello v. State Farm Fla. Ins. Co., 152 So. 3d 595, 598 (Fla. 2d DCA 2014) 

(same); Murray v. Traxxas Corp., 78 So. 3d 691, 692 (Fla. 2d DCA 2012) (same). 

 We cannot say that the facts before us offer a "crystallized, conclusive" 

record that would support summary judgment on Lucey's substantial performance 

defense. See Hastings v. Demming, 682 So. 2d 1107, 1110 (Fla. 2d DCA 1996). 

Indeed, in our view, 1010 Logic failed to meet its initial burden of disproving the 
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sufficiency of Lucey's substantial performance defense. See Rooker v. Ford Motor Co., 

100 So. 3d 1229, 1231 (Fla. 2d DCA 2012) ("A movant for summary judgment has the 

initial burden of demonstrating the nonexistence of any genuine issue of material fact." 

(quoting Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979))). 1010 Logic's 

observations about Lucey's receipt of full payment from its customer, the timing of the 

contract's termination, and a nonparty's statement about his supervision over 1010 

Logic's work—essentially inferential arguments—did not conclusively refute Lucey's 

defense that 1010 Logic failed to render substantial performance under the terms of the 

contract. See Coral Wood, 71 So. 3d at 253. As the Third District explained in National 

Constructors, Inc. v. Ellenberg, 681 So. 2d 791, 794 (Fla. 3d DCA 1996), "[t]he question 

of whether there has been substantial performance . . . is normally a question of fact for 

the trier of fact to resolve based on all of the relevant evidence." See also Fed. Nat'l 

Mortg. Ass'n v. Morton, 196 So. 3d 428, 431 (Fla. 2d DCA 2016) ("[W]hether a party has 

substantially complied with or performed a contract term remains a question of fact."). 

 Accordingly, we must reverse the entry of the final summary judgment as 

to Lucey's substantial performance affirmative defense. However, we find no error in 

any of the other rulings Lucey has challenged in this appeal. 

 Affirmed in part; reversed in part; remanded. 

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.