NOT FINAL UNTIL TIME EXPI RES 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 Corporati on (collectively, "Lucey"), t he defendants below, appeal the entry of a final summary judgment entered in favor of 1010 Logic, Inc. in its breach of contract lawsuit. Lucey rais es several issues on appeal, but we find merit in only one. The circuit court erron eously entered summary- 2 - judgment on one of Lucey's affirmative defenses where 1010 Logi c failed to conclusively refute that no disputed issue of material fact exi sted as to that defense. The facts of this case stem from a software design and technic al 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 Luc ey's customer, Belk Stores Services, from January through September 2013. In addition to describing the scope of service s to be provided, the contract included qualitative requirements for Mr. Krishnamoort hy'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 performe d "in accordance with the [a]greement and the service levels, specifications, and tim eframes 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, L ucey 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

1 Both Lucey and 1010 Logic appear to acknowledge that the contra ctual 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.

2 The parties mutually agreed upon Mr. Raman's designation under the contract as the "subject matter e xpert" for Belk's software pro ject.- 3 - September 2013. 1010 Logic then filed a complaint in the circu it court against Lucey for nonpayment under the contract. In response, Lucey denied breac hing the contract and asserted several affirmative defenses, including the defense—al beit somewhat inartfully articulated—that 1010 Logic failed to render substantial perfor mance 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 Logi c, (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 con tract, and (3) Mr. Raman expressed regret for not doing more to supervise Mr. Krishnamoo rthy. 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 1 010 Logic's summary judgment arguments as to Lucey's substantial performance defens e. 3 The circuit court granted 1010 Logic's motion and entered a final judgment in its favor, but neither the

3 Had Lucey complied with rule 1. 510(c)'s strictures, Lucey would have had ample material within Mr. Raman 's deposition to demonstrate mat erial 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. Krishnamo orthy did not properly test the code before its implementation; that Mr. Krishnamoorth y did not meet the "business requirements that were provided to him"; that after t he code "went live," additional defects were discovered; and that, had Mr. Raman him self completed the work in the same manner as Mr. Krishnamoorthy, he "would not [e xpect] to be . . . paid."- 4 - order granting summary judgment nor the final judgment specific ally addressed any of Lucey's affirmative defenses. Our court summarized the standard of appellate review for sum mary judgment rulings on affirmative defenses in Coral Wood Page, In c. 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 legall y insufficient. Morroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005). "The burden o f 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 r ecord reflects the existence of any genuine issue of material fact or the possibil ity of any issue, or if the record raises even the slightest doubt that an issue might exis t, 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 DC A 2012) (same). We cannot say that the facts before us offer a "crystallized, conclusive" record that would support summary judgment on Lucey's substanti al 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 burd en of disproving the- 5 - sufficiency of Lucey's substantial performance defense. See Ro oker 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 cus tomer, the timing of the contract's termination, and a no nparty's statement about his su pervision over 1010 Logic's work—essentially inferential arguments—did not conclusi vely refute Lucey's defense that 1010 Logic failed to render substantial performanc e under the terms of the contract. See Coral Wood, 71 So. 3d at 253. As the Third Dist rict explained in National Constructors, Inc. v. Ellenberg, 681 So. 2d 791, 794 (Fla. 3d D CA 1996), "[t]he question of whether there has been substantial performance . . . is norm ally a question of fact for

the trier of fact to resolve based on all of the relevant evide nce." 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 remain s a question of fact."). Accordingly, we must reverse the entry of the final summary j udgment as to Lucey's substantial performance affirmative defense. Howeve r, 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.