HURRICANE BOATS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CERTIFIED INDUSTRIAL FABRICATORS, INC., A DIVISION OF INSTRUMENTS SYSTEMS CORP., A NEW YORK CORPORATION, APPELLEE
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Hurricane Boats appealed from summary judgments entered in favor of Certified Industrial Fabricators in a goods sold and account stated case. The court reversed, holding that the affidavits supporting the summary judgment motions failed to comply with Florida procedural rules requiring affidavits to be based on personal knowledge, contain admissible facts, and demonstrate the affiant's competence.
The affidavit was insufficient because it did not show it was made on personal knowledge, did not set forth evidentiary facts that would be admissible in evidence, and did not affirmatively show that the affiant was competent to testify to the matters stated. Affidavits in support of summary judgment must contain specific factual allegations, not conclusions.
[1] Summary judgment affidavits must be made on personal knowledge, set forth admissible evidentiary facts, and show the affiant's competency to testify.
[2] The moving party bears the burden of demonstrating the non-existence of a genuine issue of material fact for summary judgment.
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Join FLexlaw to unlock all legal intelligence“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
Statement of the applicable Florida procedural rule governing the requirements for affidavits in summary judgment motions
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Join FLexlaw to unlock all legal intelligenceCertified Industrial Fabricators filed an unsworn complaint against Hurricane Boats alleging money due for goods sold and delivered and on an account …
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The defendant, Hurricane Boats, Inc. has appealed from a summary final judgment and an amended summary final judgment in favor of the plaintiff below, ap-pellee. These appeals have been consolidated for all appellate purposes.
Plaintiff filed an unsworn complaint alleging money due and owing from the defendant for goods sold and delivered and on an account stated. The defendant’s unsworn answer denied each allegation of the complaint.
Plaintiff moved for summary judgment and attached an affidavit executed by its Vice President. The affidavit simply stated that affiant had read the attached complaint and that the allegations contained therein were true and correct to the best of his own personal knowledge and belief. The defendant filed its affidavit in opposition thereto and the trial court rendered summary final judgment for the plaintiff.
We reverse. Rule 1.510(e), R.C.P., 31 F.S.A., provides:
“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
The affidavit in support of the plaintiff’s motion for summary judgment does not show that it was made on personal knowledge, does not set forth such evi-dentiary facts as would be admissible in evidence, and does not affirmatively show that the affiant was competent to testify to the matters stated therein.
The burden is upon the moving party to demonstrate the non-existence of a genuine issue of material fact and there is no duty on the party moved against to demonstrate the existence of such issue until after the movant has satisfied his initial burden. See Holl v. Talcott, Fla.1966, 191 So.2d 40; and Hix v. Sirkis, Fla.App.1966, 190 So.2d 207. The affidavit in support of the summary judgment may not be based upon factual conclusions or conclusions of law. See O’Brian Associates of Orlando, Inc. v. Tully, Fla.App.1966, 184 So.2d 202; First Mortgage Corporation of Stuart v. deGive, Fla.App.1965, 177 So.2d 741; and Dean v. Gold Coast Theatres, Inc., Fla.App.1963, 156 So.2d 546. In closing, we observe that defendant’s affidavit in opposition to the motion for summary judgment was also deficient under the rule.
The summary final judgment and the amended summary final judgment herein appealed be and they are hereby reversed and the cause be and the same is hereby remanded for further action consistent herewith.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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J.R. Carter v. Cessna Fin. Corp., 498 So. 2d 1319 (Fla. 4th DCA 1986)…s insufficient as containing “mere conclusions” because plaintiffs affidavit “neither indicates the source of her information nor names any users of the premises.” Id. at 559. See also Hurricane Boats, Inc. v. Certified Industrial Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) (affidavit may not be based upon mere factual or legal conclusions); Morgan v. Continental Casualty Co., 382 So. 2d 351, 353 (Fla. 3d DCA 1980) (“[Affidavits ... which are based entirely upon speculation, surmise and conjecture, a…
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Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995)…that general statements in an affidavit which are framed in terms only of conclusions of law do not satisfy a movant’s burden of proving the nonexistence of a genuine material fact issue); Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) (affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law); Sherman v. Weintraub, 132 So. 2d 421 (Fla. 3d DCA 1961) (affidavit of defendant, denying liability as a conclusion of law, w…
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Montejo Invs., N.V. v. The Green Cos., Inc., 471 So. 2d 158 (Fla. 3d DCA 1985)…alleged in the above motion are true and accurate. FURTHER AFFIANT SAYETH NAUGHT. /s/ _ GEORGE R. BROWN Vice-President of THE GREEN COMPANIES, INC. This case is indistinguishable from Hurricane Boats, Inc. v. Certified Industrial Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) where we held that a similar affidavit failed to comply with Florida Rule of Civil Procedure 1.510(e), which requires: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- First Mortg. Corp. OF Stuart v. Mary L. deGIVE, 177 So. 2d 741 (Fla. 2d DCA 1965)
- 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)
- O'Brian Assocs. OF Orlando, Inc. v. Janies C. Tully and Donald G. Symon, 184 So. 2d 202 (Fla. 4th DCA 1966)
- HIX v. Sirkis, 190 So. 2d 207 (Fla. 3d DCA 1966)