HELPING HAND PRIVATE FOUNDATION, INC., APPELLANT,
v.
OCEAN PALMS BEACH CLUB, INC., APPELLEE
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Summary judgment was improper because the moving party failed to meet its burden of disproving affirmative defenses or establishing their legal insufficiency.
[1] Summary judgment cannot be granted unless the moving party conclusively shows no genuine issue of material fact and entitlement to judgment as a matter of law.
[2] When affirmative defenses are raised, the summary judgment movant bears the burden of disproving them or establishing their legal insufficiency.
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Join FLexlaw to unlock all legal intelligenceAppellant appealed a summary final judgment in a lien foreclosure action. Appellant argued the motion and affidavits were deficient and genuine issues…
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Appellant, Helping Hand Private Foundation [“Helping Hand”], appeals a summary final judgment entered in a lien foreclosure action filed by Appellee, Ocean Palms Beach Club [“Ocean Palms”]. Helping Hand contends that summary judgment was not proper because the summary judgment motion and supporting affidavits were deficient and genuine issues of material fact preclude entry of judgment as a matter of law. Ocean Palms has not filed an answer brief. We reverse.
Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); see also Alejandre v. Deutsche Bank Trust Co. Americas, 44 So.3d 1288, 1289 (Fla. 4th DCA 2010). Where, as in this case, affirmative defenses are raised, the mov-ant has the burden of either disproving them or establishing their legal insufficiency. See O’Brien v. Fed. Trust Bank, F.S.B., 727 So.2d 296, 298 (Fla. 5th DCA 1999); Fla. Dep’t of Agric. v. Go Bungee, Inc., 678 So.2d 920, 921 (Fla. 5th DCA 1996). Here, Ocean Palms did neither. The affidavit executed by Ocean Palms’ president, Edward Polonsky, was insufficient to refute Helping Hand’s asserted defenses. See Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009). Moreover, supporting affidavits are required to be “made on personal knowledge, ... set forth such facts as would be admissible in evidence, and ... show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e). The Polonsky affidavit does not meet this test.
This case is very similar to Helping Hand Private Foundation, Inc. v. Ocean Palms Beach Club, Inc., 71 So.3d 201 (Fla. 5th DCA 2011), where we reversed a summary judgment involving the same parties on similar grounds. Accordingly, we reverse the judgment and remand to the trial court.
REVERSED and REMANDED.
TORPY and LAWSON, JJ., concur.
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Daniela Floyd v. Bank OF Am., N.A., 194 So. 3d 1071 (Fla. 5th DCA 2016)….P., 760 So. 2d 126, 130 (Fla. 2000)). The movant also has the burden of refuting any affirmative defenses raised by the non-movant or showing such defenses are legally insufficient. Helping Hand Private Found., Inc. v. Ocean Palms Beach Club, Inc., 77 So. 3d 896, 897 (Fla. 5th DCA 2012). We review orders of summary judgment de novo. Peterson v. Flare Fittings, Inc., 177 So. 3d 651, 654 (Fla. 5th DCA 2015). Floyd specifically raised the issue of Bank of America’s standing to foreclose, ah essential element…
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Mario Vitelli AND Carol Bartholomew v. Emil Hagger and Caroline Hagger, 268 So. 3d 246 (Fla. 5th DCA 2019)
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Adv. 3 D v. Auto Owners Ins. (9th Cir. Ct. App. Div. 2015)…termine if there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Krol at 491- 492, citing Fla. R. Civ. P. 1.510(c); Helping Hand Private Foundation, Inc. v. Ocean Palms Beach Club, Inc., 77 So. 3d 896, 897 (Fla. 5th DCA 2012) (explaining that summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, conclusively show that there is no genuine issue as…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009)
- Alejandre v. Deutsche Bank Tr. Co. Americas, 44 So. 3d 1288 (Fla. 4th DCA 2010)
- Dwon Kimble v. State, 15 So. 3d 905 (Fla. 3d DCA 2009)
- O'Brien v. Fed. Tr. Bank, 727 So. 2d 296 (Fla. 5th DCA 1999)
- Fla. Dep't OF Agric. v. GO Bungee, Inc., 678 So. 2d 920 (Fla. 5th DCA 1996)
- Blackwell v. State, 71 So. 3d 201 (Fla. 5th DCA 2011)
- Helping Hand Private Found., Inc. v. Ocean Palms Beach Club, Inc., 71 So. 3d 201 (Fla. 5th DCA 2011)