SKAF'S JEWELERS, INC., A FLORIDA CORPORATION, AND GEORGE J. SKAF, APPELLANTS,
v.
ANTWERP IMPORT CORP., A FLORIDA CORPORATION, APPELLEE
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Skaf's Jewelers and its owner appealed a summary judgment granted in favor of Antwerp Import Corp. in a debt collection action. The court reversed, holding that the defendants' affirmative defense of set-off created a genuine issue of material fact that precluded summary judgment.
The court held that summary judgment was improper because the defendants' plea of set-off, an affirmative defense, created a genuine issue of material fact that precluded summary judgment, and the plaintiff failed to meet its burden of showing no genuine issue of material fact.
“If there is an issue of fact and the slightest doubt remains, summary judgment should not be granted. The record supporting summary judgment should be carefully searched, and all inferences of fact from the proof submitted must be drawn against the moving party.”
Establishes the standard for reviewing summary judgment motions and requires that all factual inferences be drawn against the moving party.
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Join FLexlaw to unlock all legal intelligenceAntwerp Import Corp. sued Skaf's Jewelers, Inc. and George J. Skaf on promissory notes and for merchandise sold on open account. Defendants admitted e…
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The appellants seek review of a summary final judgment in favor of plaintiff-appellee in an action commenced by the filing of a complaint seeking recovery on a series of promissory notes executed by Skaf Jewelers, Inc., and endorsed by George J. Skaf, as well as for merchandise allegedly sold on open account to defendants by plaintiff. Defendants answered, admitting execution of the notes, but denied that they had defaulted under the terms of the notes. They also denied the amount alleged to be due and asserted by way of set-off that, of the amount alleged to be due plaintiff, part of it was for merchandise held by the defendants as memorandum merchandise, and hence was not due and payable. To the plea of set-off the plaintiff filed no responsive answer, but did file a motion for summary judgment accompanied by the affidavit of the president of the plaintiff corporation, which alleged that the defendants were liable on the notes in a certain amount, and in addition, that they owed another certain amount for goods sold by the plaintiff. The affidavit did not specifically deny the asserted claim of set-off. Plaintiff’s motion for summary judgment was granted, followed by final judgment for the full amount claimed. From this final judgment defendants appeal.
We review this litigation to determine if there is any issue of fact in the case. If there is an issue of fact and the slightest doubt remains, summary judgment should not be granted. The record supporting summary judgment should be carefully searched, and all inferences of fact from the proof submitted must be drawn against the moving party. Conversely, the court should indulge all proper inferences in favor of the party against whom the motion for summary judgment is filed. Harrison v. McCourtney, Fla.App.1962, 148 So.2d 53.
In the Harrison v. McCourtney case, supra, the defendants in their answer raised the question of estoppel. This court held that in the absence of any proof contradict*262ing or denying such alleged defense, the mere pleading of the same created a genuine issue so as to preclude summary judgment. Judge Smith, writing for the court, said :
“The defendants’ answer raised the affirmative defense of estoppel. In an action based on § 517.21, Florida Statutes, for the recovery of the amount paid for securities sold in violation of the ‘Blue Sky Laws,’ estoppel may be a defense. Popper v. Havana Publications, Inc., Fla.App.1960, 122 So.2d 247. In the absence of some proof contradicting or denying or in opposition thereto, the mere pleading of this affirmative defense created a genuine issue so as to preclude summary judgment. The movant, plaintiff here, has the burden to show from the pleadings, depositions and affidavits on file that there is no genuine issue as to any material fact and that the movarit 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. * ?}c #
Set-off, like estoppel, is an affirmative defense, which must be plead, and which must exist in favor of the defendant in the same .right in which he is sued. See Nusbaum v. Riskin, Fla.App.1961, 136 So.2d 1; and Coffin v. Talbot, 1933, 110 Fla. 131, 148 So. 184. It appears from the record and the briefs of the parties that it is only necessary for us to study the complaint, the answer, and plaintiff’s affidavit in support of its motion for summary judgment. From these instruments it appears that the plea of set-off is a proper defense against the plaintiff in this case, it being the payee of the notes. See Emile v. First National Bank of Miami, Fla.App.1961, 126 So.2d 305; Warring v. Winn-Dixie Stores, Fla.App.1958, 105 So.2d 915;. and Coffin v. Talbot, supra.
The affidavit submitted by plaintiff in its motion for summary judgment makes no attempt to refute the set-off plead in the answer, and we therefore conclude that there is a genuine issue as to material fact.
The judgment is reversed.
ALLEN and WHITE, JJ., concur.
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Felgenhauer v. Selina Bonds, 891 So. 2d 1043 (Fla. 2d DCA 2004)…ract actions that set-off is an affirmative defense that must be pleaded or it is waived. See Parker v. Priestley, 39 So. 2d 210, 213 (Fla.1949); Coffin v. Talbot, 110 Fla. 131, 148 So. 184, 187 (1933); Skaf's Jewelers, Inc. v. Antwerp Import Corp., 150 So. 2d 260, 262 (Fla. 2d DCA 1963); Jojo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003). However, in tort actions allowing for a set-off under sections 768.041 and 46.015, set-off is not an affirmative defense to be conside…
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Green v. United States Fid. & Guar. Co., 181 So. 2d 198 (Fla. 3d DCA 1965)…or determination of the issues as made by the pleadings. See: Emile v. First National Bank of Miami, Fla.App.1961, 126 So. 2d 305; Harrison v. McCourtney, Fla.App.1963, 148 So. 2d 53; Skaf’s Jewelers, Inc. v. Antwerp Import Corp., Fla.App. 1963, 150 So. 2d 260. It is essential to coverage under the policy that the status of the motorist, as to uninsured or insured, be established. Thereafter, once this issue is resolved, it will be within the jurisdiction of the circuit court to determine the issue of l…
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Lynch Austin Realty, Inc. v. Engler, 647 So. 2d 988 (Fla. 2d DCA 1994)…"while there was no evidence provided that U.C.C. l’s were filed, plaintiff provided no evidence that U.C.C. l's were not filed.” This argument overlooks the law that set-off is an affirmative defense. Skaf's Jewelers, Inc. v. Antwerp Import Corp., 150 So. 2d 260 (Fla. 2d DCA 1963). Thus, the appellees bore the burden of proving it. Ferry-Morse Feed Co. v. Hitchcock, 426 So. 2d 958 (Fla.1983).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Miami v. Lager, 105 So. 2d 915 (Fla. 3d DCA 1958)
- Emile v. First Nat'l Bank OF Miami, 126 So. 2d 305 (Fla. 3d DCA 1961)
- Harrison v. McCOURTNEY, 148 So. 2d 53 (Fla. 2d DCA 1962)
- Coffin v. Talbot, 110 Fla. 131 (Fla. 1933)
- Gwenn Popper v. Havana Publ'ns, Inc., 122 So. 2d 247 (Fla. 3d DCA 1960)
- Nusbaum v. Riskin, 136 So. 2d 1 (Fla. 2d DCA 1961)