LEE-BOOTH, INC., APPELLANT,
v.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, APPELLEE
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Lee-Booth purchased assets of Format Ten, including an alleged account receivable from Jansen Company for hardware materials supplied during a construction project. The trial court granted summary judgment in favor of surety Fidelity based on an affidavit denying any debt, but the appellate court reversed, holding that the affidavit contained only conclusory statements that did not negate genuine issues of material fact.
The court reversed summary judgment, holding that the affidavit failed to negate genuine issues of material fact because it consisted of conclusory statements and ultimate facts rather than specific factual refutations, and the invoices attached to the complaint created factual issues for the jury to resolve.
[1] A summary judgment affidavit stating ultimate facts or conclusions of law, rather than specific facts, is insufficient to support the entry of summary judgment.
[2] An affidavit asserting that a party owes no money, without detailing the basis for that assertion, constitutes a conclusion of ultimate fact and does not negate the exist…
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Join FLexlaw to unlock all legal intelligence“Simply stated, the Carrozza affidavit failed to negate the existence of genuine issues of material fact.”
Establishes the court's main holding that the affidavit was insufficient to support summary judgment because it did not eliminate factual disputes.
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Join FLexlaw to unlock all legal intelligenceLee-Booth purchased assets of Format Ten, Inc., a hardware supplier, including an alleged account receivable from Jansen Company of Florida, Inc., in …
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DANAHY, Judge.
Appellant (Lee-Booth) purchased the assets of Format Ten, Inc., a corporation in the business of hardware supply. One of those assets was an alleged account receivable due Format Ten from Jansen Company of Florida, Inc., the general contractor for the construction of the West Pasco County Government Center. Appellee (Fidelity) is the surety on Jansen’s performance and payment bond.
Lee-Booth brought this suit against Jansen and Fidelity to collect the alleged account receivable, alleging that Format Ten had entered into a hardware supply contract with Jansen with respect to the West Pasco County Government Center project and had shipped hardware material to Jansen pursuant to that contract. Lee-Booth alleged that Jansen owed a balance of $24,431.60 to Format Ten and attached invoices to its complaint reflecting that total amount.
After Lee-Booth dropped Jansen as a defendant, Fidelity filed a motion for summary judgment and offered in support of that motion an affidavit by Louis Carrozza, vice president of Jansen. In essence, the Car-rozza affidavit stated that (1) Jansen owed no money to Lee-Booth, Inc., or to Format Ten for materials delivered to Jansen; (2) Format Ten never delivered any materials to Jansen at the West Pasco County Government Center; and (3) the entire liability of Jansen under its original purchase order to Format Ten was offset by sums which Jansen was required to pay to another supplier, by the cost to Jansen of curing defective material that was delivered, and delay damages incurred by Jansen for nondelivery.
The trial judge granted summary judgment in favor of Fidelity and Lee-Booth appeals. We reverse.
Simply stated, the Carrozza affidavit failed to negate the existence of genuine issues of material fact. The statements that Jansen owed no money to Lee-Booth or to Format Ten, and that any liability of Jansen to Format Ten or Lee-Booth was offset by certain items, are nothing more than conclusions or statements of ultimate fact. Such statements do not justify entry of summary judgment. Dean v. Gold Coast Theatres, Inc., 156 So. 2d 546 (Fla. 2d DCA 1963). In view of the invoices attached to Lee-Booth’s complaint, the allegation in the Carrozza affidavit that Format Ten never delivered any materials to Jansen does nothing more than reflect the existence of a factual issue to be determined by the trier of fact.
REVERSED and REMANDED for further proceedings not inconsistent with this opinion.
GRIMES, Acting C. J., and OTT, J., concur.
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Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865 (Fla. 2d DCA 2011)…facts or documents that would explain or negate Land Development’s claim of indebtedness under the note — was nothing more than a factual conclusion that could not support entry of summary judgment. See Lee-Booth, Inc. v. Fid. & Deposit Co. of Md., 399 So. 2d 531, 532 (Fla. 2d DCA 1981) (providing that statements of ultimate fact will not “justify entry of summary judgment”); Buzzi v. Quality Serv. Station, Inc., 921 So. 2d 14, 15 (Fla. 3d DCA 2006) (noting that “ ‘[a]n affidavit in support of summary judgme…
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Herbert Halback, Inc. v. Sohrab Gerami, M.D., 459 So. 2d 452 (Fla. 5th DCA 1984)…ying that he requested any additional services contained nothing more than mere conclusions or statements of ultimate fact which did not justify the entry of summary [*453] judgment in Gerami’s favor. See Lee-Booth, Inc. v. Fidelity and Deposit Co., 399 So. 2d 531 (Fla. 2d DCA 1981); Dean v. Gold Coast Theatres, Inc., 156 So. 2d 546 (Fla. 2d DCA 1963). REVERSED and REMANDED for further proceedings. ORFINGER and SHARP, JJ., concur.…
Authorities Cited
- Jacksonville Terminal Co. v. Smith, 156 So. 2d 546 (Fla. 1st DCA 1963)
- Justina Dean v. Gold Coast Theatres, Inc., 156 So. 2d 546 (Fla. 2d DCA 1963)