WHITE v. OCEAN BAY MARINA INC (2001)

District Court of Appeal of Florida,Third District.

Bron WHITE, d/b/a Calypso Café & Seafood Grille, Appellant, v. OCEAN BAY MARINA, INC., a Florida corporation, as Assignee of Largo Lake Enterprises, Appellee.

No. 3D00-1886.

Decided: January 31, 2001

Before GERSTEN, SHEVIN and RAMIREZ, JJ.

William K. Crispin, Homestead, for appellant. Russell H. Cullen, Key Largo, for appellee.

We reverse the final summary judgment in defendant's favor and remand for further proceedings. The record demonstrates that genuine issues of material fact remain unresolved regarding whether the parties orally modified the amount of rent due under the lease. See Alan Simons Assoc., Inc. v. Deltareach Corp., 554 So.2d 581 (Fla. 3d DCA 1989); Boaters Paradise, Inc. v. Freburn Corp., 256 So.2d 68 (Fla. 3d DCA 1971). Contrary to defendant's argument, it is of no moment that the written agreement is unambiguous and, hence, cannot be rewritten by the court. “[A] written contract may be modified by a subsequent oral agreement or subsequent conduct of the parties, even though the written contract purports to prohibit such modification.” Beach Higher Power Corp. v. Granados, 717 So.2d 563, 565 (Fla. 3d DCA 1998). In view of the disputed evidence regarding the modification, summary judgment was improper.

Reversed and remanded.

PER CURIAM.

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