MARY E. EMILE, APPELLANT,
v.
FIRST NATIONAL BANK OF MIAMI, A NATIONAL BANKING CORPORATION, APPELLEE
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First National Bank of Miami sued Emile to collect on a defaulted conditional sales contract. The trial court granted summary judgment to the bank despite the defendant having viable affirmative defenses and a set-off on file, because the bank failed to submit evidence addressing those defenses. The court reversed, holding that summary judgment was improper when the moving party did not present evidence contradicting the affirmative defenses.
Summary judgment was improper. The moving party seeking summary judgment bears the burden of showing no genuine issue as to any material fact by submitting evidence contradicting affirmative defenses and set-offs on file. Here, the bank failed to meet that burden by submitting only evidentiary matter relating to its own case without addressing the affirmative defenses and set-off.
“To be entitled to a summary judgment, the moving party has the burden from "the pleadings, depositions and admissions on file, together with the affidavits, if any, [to] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law."”
Establishes the burden of proof required for summary judgment under Florida Rule of Civil Procedure 1.36
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Join FLexlaw to unlock all legal intelligenceThe bank purchased a conditional sales contract and sued Emile, who had guaranteed it. Emile filed several affirmative defenses and a set-off. The tri…
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The appellee, The First National Bank of Miami, sued the appellant to collect the defaulted amount under a conditional sales contract which the bank had purchased and which appellant had guaranteed. We will refer to the parties as they appeared in the trial court.
The defendant filed a number of affirmative defenses and a set-off. The plaintiff moved to strike them. The trial court struck some, but denied the motion as to three of the affirmative defenses and the set-off which were held to be sufficient. The plaintiff then moved for summary judgment, supporting the motion with evi-dentiary matter relating to its affirmative case, but without presenting any affidavit or evidence in contradiction or opposition to the remaining defenses and the set-off. The defendants filed nothing in opposition to the motion. The court granted summary judgment, and the defendant appealed. We are of the opinion that the learned trial judge erred in granting summary judgment.
To be entitled to a summary judgment, the moving party has the burden from “the pleadings, depositions and admissions on file, together with the affidavits, if any, [to] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” Rule 1.36, F.R.C.P. 30 F.S.A. See Johnson v. Studstill, Fla.1954, 71 So.2d 251; Jones v. Stoutenburgh, Fla.1956, 91 So.2d 299; Warring v. Winn-Dixie Stores, Fla.App. 1958, 105. So.2d 915. The plaintiff did not carry that burden by submitting evidence relating only to its case as made out in the complaint, when there were on file certain affirmative defenses and a set-off [Chereton v. Armstrong Rubber Company, Fla.1956, 87 So.2d 579], particularly as the sufficiency of the affirmative defenses and set-off had been challenged and determined. See also, Wittlin v. Giacalone, 1946, 81 U.S.App.D.C. 20, 154 F.2d 20; 6 Moore’s Federal Practice, § 56.17(4), pp. 2177-78 (2nd ed.1953). The appellee cited and relied on MacGregor v. Hosack, Fla.1952, 58 So.2d 513; City of Zephyrhills, Florida v. R. E. Crummer & Co., 5 Cir., 1956, 237 F.2d 338; Port of Palm Beach Dist. v. Goethals, 5 Cir., 1939, 104 F.2d 706, in which summary judgments were granted to plaintiffs who, in addition to submitting evidentiary matter in support of their complaints, included evidence in contradiction or denial of the affirmative defenses, with nothing filed by defendants in opposition thereto. The difference between those cases and the present case — and it amounts to a material distinction — is that here nothing was offered by plaintiff in support of its motion in contradiction or opposition to the affirmative defenses or set-off, whereas, in the cases cited the plaintiffs produced evidence against the affirmative defenses.
Therefore, the learned trial judge was in error m holding there was no genuine issue under the affirmative defenses and set-off and that the plaintiff was entitled to judgment as a matter of law, because the evidence which the plaintiff submitted with its motion for summary judgment was limited to the matters which were dealt *307with by the complaint and nothing was submitted in opposition to the affirmative defenses and the set-off, and, until some evi-dentiary matter was presented against such defenses by the plaintiff as the moving party, the defendant was under no duty to submit affidavits or proof to establish its pleaded affirmative defenses or set-off.
Reversed.
HORTON, C. J., and PEARSON, J., concur.
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Cited By (27 total)
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Harrison v. McCOURTNEY, 148 So. 2d 53 (Fla. 2d DCA 1962)…sue as to any material fact and that the movant is entitled to a judgment as a matter of law. The defendants were under no duty to submit evidentiary matter to establish their affirmative defense. Emile v. First National Bank of Miami, Fla.App.1961, 126 So. 2d 305. In examining the depositions and affidavits to determine whether or not the plaintiff carried the burden of demonstrating that there was no genuine issue as to any material fact, with reference to the affirmative defense of estoppel, we note that…
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Reflex, N.V. v. The Umet Tr., 336 So. 2d 473 (Fla. 3d DCA 1976)…udgment of foreclosure, Reflex urges that the pleadings and depositions, together with the affidavits on file, showed a genuine issue as to affirmative defenses raised by Reflex in its answer. See Emile v. First National Bank of Miami, Fla.App.1961, 126 So. 2d 305. The affirmative defenses urged (1) that UMET’s conduct after the date of the alleged default amounted to a waiver of estoppel sufficient to render a foreclosure of UMET’s mortgage inequitable, and (2) that UMET’s actions in working with the owner p…
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Pompano Paint Co. v. Pompano Beach Bank & Tr. Co., 208 So. 2d 152 (Fla. 4th DCA 1968)…of the motion for summary judgment, the plaintiff is not entitled to a summary judgment even though his supporting affidavits may have made out a sufficient case based on the pleadings alone. See Emile v. First National Bank of Miami, Fla.App.1961, 126 So. 2d 305; Harrison v. McCourtney, Fla.App.1962, 148 So. 2d 53, 56; and, Underwriters Insurance Company v. Sisung, Fla.App.1965, 174 So. 2d 461. Also it appears to us that the affidavit of the defendant’s attorney raises an issue of fact as to the defense of…
Previewing 3 of 27 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. Stoutenburgh, 91 So. 2d 299 (Fla. 1956)
- Johnson v. Studstill, 71 So. 2d 251 (Fla. 1954)
- MacGregor v. Hosack, 58 So. 2d 513 (Fla. 1952)
- Wittlin v. Giacalone, 154 F.2d 20 (D.C. Cir. 1946)
- Port of Palm Beach Dist. v. Goethals, 104 F.2d 706 (5th Cir. 1939)
- Chereton v. Armstrong Rubber Co., 87 So. 2d 579 (Fla. 1956)
- City OF Zephyrhills v. R. E. Crummer & Co., 237 F.2d 338 (5th Cir. 1956)