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Author Topic: Summary Judgement  (Read 25437 times)
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« on: August 14, 2006, 12:55:40 PM »

SUMMARY JUDGEMENT - A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgement as a matter of law.

A material fact is one which might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To preclude summary judgment, the dispute about a material fact must also be "genuine," such that a reasonable jury could find in favor of the non-moving party. Id.

Conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment. See, e.g., Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

In general, inadmissible hearsay evidence may not be considered on a motion for summary judgment. Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir. 1990).

Summary judgment is properly granted when the evidence in support of the moving party establishes that there is no issue of material fact to be tried. (Code Civ. Proc., section 437c; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35.) The court is required to consider all the evidence set forth in the papers, except where objections are properly sustained, and all inferences reasonably deducible from such evidence. Any doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. (Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856, 862.) If the court determines there is no triable issue of fact, the court will determine any remaining issues of law. (Pittelman v. Pearce (1992) 6 Cal.App.4th 1436, 1441.)
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« Reply #1 on: August 14, 2006, 01:07:37 PM »

“When the record reflects the possibility or slightest doubt that an issue exists, summary judgment is improper.” Athans v. Soble, 553 So.2d 1361 (Fla. App. 2 Dist. 1989)


“When affirmative defenses are asserted, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency.”
Howdeshell v. First Nat’l Bank of Clearwater, 369 So.2d 432 (Fla. App. 2 Dist. 1979)
Accord Proprietors Ins. Co. v. Siegel, 410 So.2d 993 (Fla. App. 3 Dist. 1982)


“Summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.”
Pandol Bros. v. NCNB Nat’l Bank of Fla., 450 So.2d 592 (Fla. App. 4 Dist. 1984)
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« Reply #2 on: August 21, 2006, 04:11:56 PM »

“Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.”
Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003)

“Where a defendant pleads an affirmative defense and the plaintiff does not, by affidavit or other sworn evidence, negate or deny that defense, the plaintiff is not entitled to summary judgment.”
Maung v. National Stamping, LLC, 842 So.2d 214 (Fla. 3rd DCA 2003)

“Where the wording in an agreement is ambiguous, its interpretation involves questions of fact, which preclude summary judgment.”
Ieracitano v. Shaw, 815 So.2d 787 (Fla. 4th DCA 2002)


“Under Florida law, court may grant summary judgment based on fraud in appropriate case.”
In re Hartman, 274 B.R. 911 (Bkrtcy., M.D. Fla. 2002)
 


“Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.”
Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th  DCA 2003)

“The party moving for summary judgment has the burden to prove the absence of material fact issues.”
Font v. Stanley Steemer Intern., Inc., 849 So.2d 1214 (Fla. 5th DCA 2003)

“Until some evidentiary matter is presented on summary judgment motion attacking opposing party’s affirmative defenses, the opposing party has no obligation to submit affidavits or proof to establish its affirmative defenses in order to survive summary judgment.”
Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003)
 
“A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.”
“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.”
Rule 1.510(c)
Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003)

“If the evidence raises an issue of material fact, is conflicting, or permits reasonably different inferences, then the evidence should be submitted to the trier of fact.”
Novotny v. Estate of Dantone, 848 So.2d 398 (Fla. 4th DCA 2003)
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« Reply #3 on: August 21, 2006, 04:35:59 PM »

s. 183 Motion or other application for Summary Judgment

“Florida courts do not require fact intensive investigation into merits, when deciding whether prayer for punitive damages is properly included in complaint; Florida courts entertain punitive damage issue by way of motion to dismiss or motion to strike, not by way of summary judgment motion.”
Porter v. Ogden, Newell & Welch, 241 F.3d 1334 (C.A. 11, Fla. 2001)

“There is no prohibition on the presentation of successive motions for summary judgment.”
Florida Dept. of Transp. v. Juliano, 801 So.2d 101 (Fla. 2001)

“Summary judgment motion, which stated only in general terms that no material issues of fact or law existed and that movant was entitled to relief requested, was insufficient to place nonmoving party on notice of issues of fact or law which would be argued at hearing.” Rule 1.510
Locke v. State Farm and Cas. Co., 509 So.2d 1375 (Fla. 1st DCA 1987)

“It is not necessary at hearing on summary judgment for nonmoving party to produce evidence to prove its case as it would at trial; available inferences may allow case to survive motion for summary judgment.”
Lynch v. Tennyson, 443 So.2d 1017 (Fla. 5th DCA 1983)

“On motion for summary judgment, it is the burden of the moving party to conclusively prove that no genuine issue of material fact exists.”
Dade County School Bd. V. Radio Station WQBA, 731 So.2d 638 (Fla. 1999), rehearing denied.

“Party moving for summary judgment must show conclusively absence of any genuine issue of material fact and court must draw every possible inference in favor of party against whom summary judgment is sought.”
Moore v. Morris, 475 So.2d 666 (Fla. 1985)

“Burden of party moving for summary judgment is greater, not less, than that of plaintiff at trial.”
“Party moving for summary judgment must show concusively that no material issues remain for trial.”
“It would be merely another of issues upon which plaintiff would have burden of proof at trial and should be treated as material triable issue, unless there is evidence in record showing that …”
Visingardi v. Tirone, 193 So.2d 601 (Fla. 1966), opinion conformed to 194 So.2d 921.

“The burden of one who moves for summary judgment is limited to making the required showing only as to those issues made by the pleadings.”
“The burden to prove nonexistence of genuine triable issues is on party moving for summary judgment, and burden of proving existence of such issues is not shifted to opposing party until movant has successfully met his burden.”
“Before it becomes necessary to determine legal sufficiency of affidavits or other evidence submitted by party moved against, it must first be determined that party moving for summary judgment has successfully met his burden of proving a negative, i.e., the nonexistence of genuine issue of material fact; he must prove this negative conclusively and the proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party.”
“The burden of proving absence of genuine issue of material fact is upon party moving for summary judgment; until it is determined that movant has successfully met this burden, opposing party is under no obligation to show that issues remain to be tried.”
“A movant for summary judgment may meet his burden by showing conclusively that he is not guilty of the negligence charged against him; conceivably he may also meet this burden by showing conclusively that the negligence charged, or committed by him, was not causally related to plaintiff’s injury; he might also do it by showing conclusively that plaintiff is unable to present requisite proof of negligence charged in the pleadings.”
Holl v. Talcott (Fla. 1966), 191 So.2d 40, opinion conformed to 192 So.2d 76, appeal after remand 224 So.2d 420, certiorari denied 232 So.2d 181, rehearing and rehearing granted Page v. Staley, 226 So.2d 129.

“Movant seeking summary judgment does not have burden of excluding every possible inference that opposing party might have other evidence available at trial to prove his case.”
“A movant for a summary judgment has burden of demonstrating that there is no genuine issue on any material fact.”
“All doubts regarding existence of an issue in motion for summary judgment are resolved against the movant, and evidence presented at hearing plus favorable inferences reasonably justified thereby are liberally construed in favor of the opponent.”
Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla. 1965)


“In action for negligence, defendant has no obligation to offer evidence to excuse itself upon application for summary judgment when it is properly shown that plaintiff is completely without proof to sustain her complaint.”
Food Fair Stores of Fla., Inc. v. Patty, 109 So.2d 5 (Fla. 1959), opinion conformed to 109 So.2d 399.



s. 185(6)
“Burden is on summary judgment movant to demonstrate conclusively that nonmoving party cannot prevail, and if record reflects existence of any genuine issue of material fact, or possibility of any issue, or if the record raises even the slightest doubt that issue might exist, summary judgment is improper.”
Pennco, Inc. v. American General Home Equity, Inc., 629 So.2d 307 (Fla. 2nd DCA 1993)

“If record reflects existence of any genuine issue of material fact, or possibility of any issue, or if record raises even slightest doubt that issue may exist, summary judgment is improper.”
Archie v. State Farm Fire & Cas. Co., 603 So.2d 126 (Fla. 2nd DCA 1992)

“Summary judgment is improper if record raises even the slightest doubt that issue of material fact might exist.”
Martin v. Golden Corral Corp., 601 So.2d 1316 (Fla. 2nd DCA 1992)

 “Summary judgment should not be granted when record raises even slightest doubt that issue of fact might exist.”
Sfeir v. Equitable Life Assur. Soc. of U.S., 595 So.2d 971 (Fla. 2nd DCA 1992)

“Burden is on summary judgment movant to demonstrate conclusively that nonmoving party cannot prevail; if record reflects existence of any genuine issue of material fact, or possibility of any issue, or if record raises even the slightest doubt that issue might exist, summary judgment is improper.”
Cocoa Properties, Inc. v. Commonwealth Land Title Ins. Co., 590 So.2d 989 (Fla. 2nd DCA 1991)

“The law places the burden on the plaintiff to conclusively demonstrate the absence of any genuine issue regarding the viability of the defendant’s affirmative defenses, for purpose of summary judgment.”
Wendt v. Laske, 760 So.2d 1125 (Fla. 5th DCA 2000), review granted.

“If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined.”
Hoch v. Rissman, Weisberg, Barrett, 742 So.2d 451 (Fla. 5th DCA 1999), review denied 760 So.2d 948.


“Summary judgment proceedings are pre-trial in character, and their purpose is to avoid the time and expense of a useless trial if it clearly appears from the pleadings, affidavits, depositions and other evidence in the record that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law.”
Ameriscal of North East florida, Inc. v. Leiffer, 738 So.2d 993 (Fla. 5th DCA 1999), rehearing denied, review denied 763 So.2d 1042.


“If evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove issues, it should be submitted to jury as question of fact to be determined, and thus summary judgment is precluded.”
Venezia v. Egan, 671 So.2d 175 (Fla. 5th DCA 1996), rehearing denied, review denied 680 So.2d 422.


:”Summary judgment is precluded if evidence is conflicting or if inferences reasonably deducible from evidence cast doubt on material issue.”
Lane v. Talloni, 626 So.2d 316 (Fla. 5th DCA 1993)  


“When evidence before court on summary judgment is conflicting or will permit different reasonable inferences, it should be submitted to jury and summary judgment.”
Wallace v. Pensacola Rent-A-Wreck, Inc., 616 So.2d 1048 (Fla. 5th DCA 1993), review dismissed 623 So.2d 494.


“A movant for summary judgment must demonstrate, by admissible evidence, nonexistence of a genuine issue of material fact.”
Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984).


“If trial judge determines evidence to be insufficient to support verdict, appellee is entitled to corrective verdict or judgment n. o. v., but this determination cannot be made by summary judgment, where all questions of fact must be resolved in favor of nonmoving party, and should a genuine issue of material fact be extant, summary judgment must be denied.”
Squitieri v. Aetna Cas. & Sur. Co., 382 So.2d 730 (Fla. 5th DCA 1990)



s. 185.1(1)
“Affidavits in opposition to summary judgment motion must be served at least one day prior to day of hearing and filed before hearing commences; there is no requirement of filing affidavit ay any specific time.” Rule 1.510(e)
“If service of affidavits in opposition to summary judgment motion is to be effected by mail, affidavits must be mailed sufficiently in advance so that expiration of five days for mailing will be prior to day of hearing.”
Silva v. Hernandez, 612 So.2d 1377 (Fla. 1993), on remand 616 So.2d 195.


“Language of rule governing court’s consideration of motion for summary judgment reflects intent to allow courts to consider only that information which has been either admitted by parties or which establishes existence or nonexistence of material facts in dispute through affidavits and information which has been timely presented.”
“Rule governing court’s consideration of motion for summry judgment requires that any opposing affidavits to motion for summary judgment be mailed at least five days prior to scheduled hearing or be hand delivered to opposing counsel at least two days prior to hearing.”
Harris v. Wilson, 656 So.2d 512 (Fla. 1st DCA 1995), rehearing denied, review granted 666 So.2d 143, decision approved 693 So.2d 945, rehearing denied.

“Summary judgment should not be granted because of technical deficiencies in nonmovant’s affidavit.”
McCoy v. Hoffmeister, 435 So.2d 989 (Fla. 5th DCA 1983)

“Trial court could refuse to consider affidavits filed on day of summary judgment hearing.” Rule 1.510(c)
Charles E. Burkett & Associates, Inc. v. Vick, 546 So.2d 1190 (Fla. 5th DCA 1989)

“Exigent circumstances may relieve party from civil rule requirement that affidavits in opposition to summary judgment motion be filed at least one day prior to hearing.”
Davis v. Lyall & Lyall Veterinarians, P.A., 506 So.2d 1072 (Fla. 5th DCA 1987), review denied 513 So.2d 1062.



s. 185.1(2)
“Affidavit in support of motion for summary judgment is defective if affidavit fails to be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that affiant is competent to testify as to matters stated in affidavit.” Rule 1.510(e)
Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615 So.2d 207 (Fla. 4th DCA 1993)

 “When affidavits are filed to establish the factual basis of a summary judgment motion, they must be made on personal knowledge, demonstrate the affiant’s competency to testify, and be otherwise admissible in evidence.’
Shafran v. Parrish, 78 So.2d 177 (Fla. 2nd DCA 2001)

“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.” Rule 1.510(e)
Thompson v. Citizens Nat. Bank of Leesburg, Fla., 433 So.2d 32 (Fla. 5th DCA 1983)



s. 185.2(4)
“Unless record shows absence of essential fact, party opposing motion for summary judgment has no obligation to put in evidence on any issue raised by the motion even though he would have burden of proof on that point at trial.”
Biro v. Geiser, 199 So.2d 461 (Fla. 1967)

“Summary judgment is inappropriate unless facts of case are so crystallized that disposition of questions of law are all that remain for trial court to determine; opposing affidavit need only raise material issue of fact to survive motion, and all inferences, doubts, and conclusions must be construed in favor of party opposing motion.”
Smith v. Harr, 571 So.2d 575 (Fla. 5th DCA 1990), review denied 581 So.2d 1308.

“A party seeking to avoid a summary judgment is not required to demonstrate with clear and convincing evidence that there was a genuine issue as to any material fact, but is merely required to demonstrate that a genuine issue as to material fact is in dispute.”
Collins v. Brigman, 428 So.2d 373 (Fla. 5th DCA 1983)

“Party against whom summary judgment is sought has no initial burden to make any showing, but when party who seeks summary judgment has made initial showing of absence of any genuine issue of material fact, then party moved against has burden of coming forward with evidence sufficient to reveal that such issue exists and it is not sufficient to merely assert that an issue does exist.”
Gay Bros. Const. Co. v. Florida Power & Light Co., 427 So.2d 318 (Fla. 5th DCA 1983)

“Where motion for summary judgment is supported by evidence which reveals no genuine issue of material fact, it is not sufficient for opposing party merely to assert that issue does exist; rather, opposing party must come forward with evidence sufficient to generate issue on material fact.”
Noack v. B.L. Watters, Inc, 410 So.2d 1375 (Fla. 5th DCA 1982)



s. 185.2(5)
“Where answer raised issue of fact that was not met by plaintiff’s affidavit in support of motion for summary judgment, genuine issue of fact remained regardless of insufficiency of defendant’s counter-affidavit, and summary judgment for plaintiff was erroneous.”
Chereton v. Armstrong Rubber Co., 87 So.2d 579 (Fla. 1956)

“In face of answer denying all allegations of the complaint, affidavit containing statement by officer of plaintiff that the allegations of the complaint were true and that he was personally knowledgeable was insufficient to support motion for summary judgment.”
Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA 1986)

“The trial court should not enter a summary judgment due to technical difficulties in the nonmovant’s affidavit.”
Hammond v. Joyce, 756 So.2d 162 (Fla. 2nd DCA 2000)

“Plaintiff’s affidavit in support of summary judgment, stating “I believe that there is no defense to the cause of action set forth in my complaint,” was not sufficient proof to establish that there was no material issue of fact or that defendants’ affirmative defense was legally insufficient.”
Witts v. Cortman, 620 So.2d 197 (Fla. 2nd DCA 1993)


s. 185.2(6)
“In construing affidavits submitted at hearing on motion for summary judgment, court holds moving party to a strict standard and the papers supporting his position are closely scrutinized, while papers of opposing party are leniently treated.”
Groner-Youngerman, Inc. v. Denison, 117 So.2d 210 (Fla. 2nd DCA 1959)

“When deposition and affidavit of party on motion for summary judgment appear to be in conflict, reasonable inference rule applies, and if it is possible that both deposition and affidavit are true, any reasonable inference must be resolved in favor of party defending against motion.”
Buntin v. Carter, 234 So.2d 131 (Fla. 4th DCA 1970)
 

“Liberal treatment is to be accorded the papers of a party opposing a motion for summary judgment.”
Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed 216 So.2d 448.



s. 185.2(9)
“Where plaintiff fails to present affidavits is support of allegations of the complaint, or in the alternative affidavits in opposition to a motion for summary judgment showing reasons why essential facts could not be presented by contesting affidavits, all that trial judge has before him for consideration are unsupported complaint and deposition or affidavits of movant for summary judgment, and if depositions and affidavits reveal no cause for complaint it is proper to enter a summary judgment for the defendant.”
Pritchard v. Peppercorn & Peppercorn, Inc., 96 So.2d 769 (Fla. 1957)


s. 185.3(1)
“A record that is silent on a determinative issue of fact forecloses summary judgment in that the movant’s burden is to establish that he is entitled to a judgment as to a matter of law because there is no genuine issue as to any material fact.”
Shores v. Wegmann, 390 So.2d 87 (Fla. 1st DCA 1979)


“A record that is silent on a determinative issue of fact forecloses summary judgment.”  Rule 1.510(c).
Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979)


“In subrogees’ contribution action against retailer which had sold baseball pitching machine, filed after manufacturer of machine has settled with injured party, evidence raised substantial fact issue as to whether retailer has received written notices warning of dangerous characteristics of pitching machine which precluded summary judgment.”
Home Ins. Co. v. C & G Sporting Goods, Inc., 453 So.2d 121 (Fla. 1st DCA 1984)


“In action to collect amount due for services rendered, amount of debt was sufficiently established to permit entry of summary judgment for creditor; invoices were attached to complaint, creditor filed affidavits of its credit officer, and debtor did not contest amount of debt at hearing on summary judgment motion.”
“There was no contractual duty of good faith that creditor could have breached to provide debtor with a defense to suit on debt, where creditor conceded at summary judgment hearing that there was no contract between the parties.”
Melbourne Medical Laboratory, Inc. v. Lab Corp. of America, 722 So.2d 962 (Fla. 5th DCA 1998)

“Record sufficiently disclosed presence of issues of fact in relation to complaint alleging an account stated so as to preclude summary judgment for plaintiff.”
Recreation Corp. of America v. Jack Drury & Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970)

“In action to recover money allegedly due and owing from defendant for goods sold and delivered and on account stated, that affidavit in support of plaintiff’s motion for summary judgment did not show that it was made on personal knowledge, did not set forth such evidentiary facts as would be admissible in evidence, and did not affirmatively show that affiant was competent to testify to matters therein precluded summary judgment.” Rule 1.510(e)
Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So.2d 174 (Fla. 3rd DCA 1971)

“Where assignee of account receivable, in support of its motion for summary judgment, filed affidavits asserting that it renewed assignor’s notes only after account debtor confessed fact that assigned account receivable was outstanding and owing to assignor, assignee was not precluded from asserting estoppel at summary judgment hearing.”
Boulevard Nat. Bank of Miami v. Gulf American Land Corp. 179 So.2d 584 (Fla. 3rd DCA 1965), quashed 189 So.2d 628, on remand 190 So.2d 67.









s. 186
“Where all the pleadings have been filed and depositions taken, on a motion for summary judgment only questions of fact are raised that must be decided upon the evidence and not on the pleadings.”
“On a motion for summary judgment, the court should not be asked to substitute itself for the jury and try controverted issues of fact, but for the purpose of such motion, it should be assumed that every fact as to which the party moved against has any appreciable evidence may at a trial be established to the satisfaction of a jury.”
Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla. 1956)


“Constitutional right to jury trial demands that particular care be accorded in ruling on motions for summary judgment to end that controverted issues of fact be resolved not upon pleadings and depositions but by jury functioning under proper instructions.”
Drahota v. Taylor Const. Co., 89 So.2d 16 (Fla. 1956)


“A hearing on a motion to strike pleadings, or motion for summary judgment is not to try issues, but to determine whether there are any issues to be tried.”
Meadows v. Edwards, 82 So.2d 733 (Fla. 1955)


“If salient facts are established beyond dispute, question then arises whether one party or the other party should be awarded judgment as a matter of law, and that question may be decided by trial judge using the established facts as a premise.”
Manning v. Clark, 71 So.2d 508 (Fla. 1954)

“Unsworn summary judgment motion is not sufficient to rebut allegations of unsworn complaint, which must be accepted as true for purposes of summary judgment.”
Green v. CSX Transp., Inc. 626 So.2d 974 (Fla. 1st DCA 1993)

 “Trial court in ruling on motion for summary judgment may not resolve controverted issues of fact.”
Manucy v. Manucy, 362 So.2d 478 (Fla. 1st DCA 1978)


“Where none of pleadings were under oath, allegations of complaint had as much efficacy as allegations of answer for purpose of motion for summary judgment.”
Feinman v. City of Jacksonville, 356 So.2d 50 (Fla. 1st DCA 1978)



“Court on motion for summary judgment could not consider evidence which was inadmissible under parol evidence rule.”
Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962), certiorari denied 146 So.2d 378

“Only competent evidence may be considered by court in ruling upon motion for summary judgment.”
Halavin v. Tamiami Trail Tours, Inc., 124 So.2d 746 (Fla. 1st DCA 1960)

“Summary judgment must be decided on evidence and not pleadings.”
West American Ins. Co. v. Rauch, 412 So.2d 956 (Fla. 4th DCA 1982), review denied 424 So.2d 764.

“On motion for summary judgment, the court must determine if the movant has conclusively demonstrated that not real fact issue exists and that there is no evidence on which opposing party could rely.”
“The court must not only consider the evidence, such as the pleadings, interrogatories, depositions, affidavits, etc., on a motion for summary judgment, but from such evidence, must be able to conclude that no reasonable inference would give rise to a disputed fact issue.”
Shollenberger v. Baskin, 227 So.2d 79 (Fla. 4th DCA 1969)

“On motion for summary judgment, ample opportunity should be granted opposing party to justify his opposition.”
“Under rule, a ruling on a motion for summary judgment may be deferred and motion decided after opposing party has been granted an opportunity to develop through affidavits or depositions material necessary to justify his opposition.”
“Trial court judge does not function as a trier of fact in determining a motion for summary judgment.”
“On motion for summary judgment, all reasonable inferences are drawn against movant in favor of the opponent of the motion and papers supporting motion are closely scrutinized and opposing papers indulgently treated.”
Firestone v. Time, Inc, 231 So.2d 862 (Fla. 4th DCA 1970) ……

“Where summary judgment should be entered in cause and it appears the unsuccessful party may have a cause of action or defense if properly pleaded, proper procedure is to grant motion for summary judgment but with leave to amend.”
Sea Shore Motel Corp. v. Fireman’s Fund Ins. Co., 233 So.2d 651 (Fla. 4th DCA 1970), certiorari denied 238 So.2d 425.



“Where entry of summary judgment for defendant is proper but record establishes that plaintiff may have a viable claim if properly pleaded, opportunity should be afforded to amend complaint, and such authorization may be included in order granting summary judgment.”
Watier v. REW Crane Services, Inc., 240 So.2d 177 (Fla. 4th DCA 1970), amended Gold Coast Crane Service, Inc. v. Wateir, 257 So.2d 249.
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« Reply #4 on: August 21, 2006, 04:55:44 PM »

Inadmissible affidavits

“Statements contained in affidavits, to be considered on motion for summary judgment, must be of such evidentiary value that they would be admissible at trial.”
Garwood v. Equitable Life Insurance Society of U.S., 299 So.2d 163 (Fla. 3rd DCA 1974)

“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.”  Fla. R. Civ. P. 1.510(e).
Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA 1983)

“Affidavit based on information and belief rather than personal knowledge was not admissible into evidence and should not have been considered by trial court in connection with motion for summary judgment.” F.S.A. 90.604, Fla. R. Civ. P. 1.510(e)
Campbell v. Salman, 384 So.2d 1331 (Fla. 3rd DCA 1980)

“Affidavit filed by plaintiff in support of motion for summary judgment in action on open account for goods sold and delivered was insufficient to establish lack of material issue of fact, where it did not identify account, merely stated conclusions, did not set forth such facts as would be admissible in evidence, was not specific as to who allegedly owed the account, did not show that it was made on personal knowledge, and did not deal with issue raised by counterclaim, looked on as a defense.” Fla. R. Civ. P. 1.110(d), 1.510(e).
Silber v. Campus Sweater & Sportwear, 313 So.2d 409 (Fla. 1st DCA 1975)

“Where movants based summary judgment motion on facts contained in unsworn complaint, unsupported by affidavit or other competent evidence, nonmovant’s objection to summary judgment was well taken.”
Schrank v. Pearlman, 683 So.2d 559 (Fla. 3rd DCA 1966)
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« Reply #5 on: August 30, 2006, 09:10:39 PM »

“Under the Florida state court procedure, the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the “slightest doubt” is raised.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.2, pg. 624.

ummary judgment may not be used as a substitute for a trial on the merits; … To do [otherwise] would simply deprive the litigants of their constitutional right to a trial on the merits …”
Holl v. Talcott, 191 So.2d 40 (Fla. 1966);
Albelo v. Southern Bell, 682 So.2d 1126, 129 (Fla. 4th DCA 1996).

“A summary judgment deprives a party of her right to trial and must be exercised with restraint.”
Clay Elec. Coop, Inc. v. Johnson, 873 So.2d 1182 (Fla. 2003).

“The burden on the moving party has, since the adoption of the modern civil procedure rules, been stated in accordance with the Supreme Court’s opinion in Holl v. Talcott, probably the most cited case on this subject, as follows: it is the movant’s burden on summary judgment “to prove the non-existence of genuine triable issues.” [Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966)]. The burden of proof at trial is thus irrelevant under Florida [summary judgment] law, because the movant must not only establish entitlement to relief based on the movant’s own pleaded issues, but also that the non-moving party cannot prevail on its own case. This substantial burden is, more frequently than not, characterized in virtually every court in the state as requiring “conclusive” or “irrefutable” proof.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]b, pg. 636.
“Moving party must establish “that the nonmoving party cannot prevail.”
Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2nd DCA 1995);
“Movant has burden to demonstrate that the opposing party cannot prevail.”
St. Pierre v. United Pac. Life Ins. Co., 644 So.2d 1030, 1031 (Fla. 2nd DCA 1994);
“Movant must demonstrate that the nonmoving party cannot prevail.”
Cocoa Props., Inc. v. Commonwealth Land Title Ins. Co., 590 So.2d 989, 990 (Fla. 2nd DCA 1991);
Fisel v. Wynns, 667 So.2d 761, 764 (Fla. 1996) (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) (the moving party “must show conclusively the absence of any genuine issue of material fact”);
Kitchen v. Ebonite Recreation Ctrs., Inc., 856 So.2d 1083, 1085 (Fla. 5th DCA 2003) (“A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact.”);
Lawrence v. Pep-Boys-Manny Moe & Jack, Inc., 842 So.2d 303, 304-05 (Fla. 5th DCA 2003) (“the moving party has the burden to prove conclusively the nonexistence of any genuine issue of material fact.”);
First N. Am. Nat’l Bank v. Hummel, 825 So.2d 502, 503 (Fla. 2nd DCA 2002) (“A party moving for a summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.”);
Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) (movant to show “conclusively” the “complete absence” of a triable issue.);
Jewett v. Leisinger, 655 So.2d 1210, 1212 (Fla. 4th DCA 1995) (movant must “conclusively” show absence of any genuine issue);
Pinchot v. First Fla. Banks, Inc., 666 So.2d 201, 202 (Fla. 2nd DCA 1995 (movant’s burden to “demonstrate conclusively that the nonmoving party cannot prevail.”);
Star Lakes Estates Ass’n Auerbach, 656 So.2d 271, 274 (Fla. 3rd DCA 1995) (“the moving party is required to conclusively prove the absence of genuine issues”);
Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2nd DCA 1995) (“The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail.”);
Spradley v. Stick, 622 So.2d 610,612 (Fla. 1st DCA 1993) (“movant’s proof of the nonexistence of a genuine issue of fact must be ‘conclusive’”);
Nelson v. Balkany, 620 So.2d 1138, 1139 (Fla. 3rd DCA 1993) (movant “must demonstrate, conclusively, the non-existence of a genuine issue.).


“The foregoing burden on the moving party to establish, going forward, that the non-movant cannot prevail, in the context of a motion by the plaintiff (or other party seeking affirmative relief), translates into an affirmative obligation as part of that burden to refute any factual ground supporting affirmative defenses or to establish the legal insufficiency of such defenses.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]b, pg. 637.
Hospital Correspondence Corp. v. McRae, 682 So.2d 1177, 1182 (Fla. 5th DCA 1996) (movant must “demonstrate the lack of factual support for of the legal insufficiency of [the] affirmative defenses”);
Florida Dep’t of Agric. v. Go Bungee, Inc., 678 So.2d 920, 921 (Fla. 5th DCA 1996) (once affirmative defense raised, movant has burden of disproving or establishing legal insufficiency) (citing Wilson v. Pruette, 422 So.2d 351, 352 (Fla. 2nd DCA 1982);
Fasano v. Hicks, 667 So.2d 1033, 1034 (Fla. 2nd DCA 1996) (plaintiff cannot obtain summary judgment in the absence of proof contradicting affirmative defense);
Knight Energy Serv., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995) (plaintiff must factually refute affirmative defenses or establish that they are legally insufficient).

“It is very clear under Florida law that the party responding to a motion for summary judgment has not burden whatsoever, and can rest entirely upon the issues raised by the pleadings, unless and until the moving party has satisfied its own burden."
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]b, pg. 637.
Holl v. Talcott, 191 So.2d 40, 43-44 (Fla. 1966) (Romero v. All Claims Ins. Repairs, Inc., 698 So.2d 605 (Fla. 3rd DCA 1997) (summary judgment was improper, even where the non-movant failed to appear at the summary judgment hearing, where deposition testimony and interrogatory responses demonstrated the existence of disputed material facts.);
Star Lakes Estates Ass’n Auerbach, 656 So.2d 271, 274 (Fla. 3rd DCA 1995) (quoting Holl v. Talcott);
Spradley v. Stick, 622 So.2d 610,612 (Fla. 1st DCA 1993) (“Until it is determined that the movant has successfully met its initial burden, the opposing party is under no obligation to show that there are issues remaining to be tried.”).

“The court’s function, on a motion for summary judgment, is solely to determine whether, from the record, there exists a genuine issue to any material fact, not to determine any such issue, and thus not to pass on credibility of witnesses or weight of evidence. Thus, if any such issue arises, the court’s inquiry is concluded and the motion must be denied. Only in the absence of any such issue can a motion for summary judgment be granted.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]d, pg. 638.
Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2nd DCA 1995);
Omaha Ins. Co. v. Eakins, 337 So.2d 418, 419 (Fla. 2nd DCA 1976);
Industrial Sales & Serv. Corp. v. Duval Motors, 245 So.2d 891, 891-92 (Fla. 3rd DCA 1971);
Navison v. Winn & Lovett Tampa, Inc., 92 So.2d 531, 533 (Fla. 1957).

“In performing its function, the court must consider all facts in the light most favorable to the non-moving party. That the inferences must be reasonable necessarily precludes consideration of inferences not justifiable from the facts or based on speculation or conjecture.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]d, pg. 638.
Fisel v. Wynns, 667 So.2d 761, 764 (Fla. 1996) (“Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985);
Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) (trial court must draw every possible inference in favor or party against whom summary judgment is sought) (citing Moore v. Morris);
Destiny Const. Co. v. Martin K. Eby Constr., 662 So.2d 388, 390-91 (Fla. 5th DCA 1995) (court must view evidence in light most favorable to and draw every reasonable inference in favor of non-moving party) (also citing Moore v. Morris, supra.);
Jewett v. Leisinger, 655 So.2d 1210, 1212 (Fla. 4th DCA 1995) (court must draw “every reasonable inference in favor of the non-moving party”);
McDonald v. Florida Dep’t. of Transp., 655 So.2d 1164, 1167-68 (Fla. 4th DCA 1995) (trial court must draw every reasonable inference against the moving party);
Charlonne v. Rosenthal, 642 So.2d 632, 634 (Fla. 3rd DCA 1994) (facts considered in light most favorable to non-moving party).
Stepp v. State Farm Fire & Cas. Co., 656 So.2d 494, 496 (Fla. 1st DCA), review denied, 663 So.2d 632 (Fla. 1995) (inferences based on speculation and conjecture are impermissible; inferences must be justifiable) (quoting DeMesme v. Stephenson, 498 So.2d 673, 675 (Fla. 1st DCA 1986).

“Even if the relevant, material facts are themselves undisputed, the existence of competing inferences from those facts would preclude the entry of summary judgment so long as inferences are reasonable.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]d, pg. 638.
Star Lakes Estates Ass’n Auerbach, 656 So.2d 271, 274 (Fla. 3rd DCA 1995) (must “overcome all reasonable inferences which may be drawn in favor of the opposing party”);
Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2nd DCA 1995) (even where facts are uncontroverted, summary judgment is improper if there are competing inferences that can reasonably be drawn).

“Finally, literally a host of cases have recognized that even the mere possibility or the slightest doubt that an issue might exist is sufficient to defeat summary judgment.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[6]d, pg. 639.
Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) (summary judgment unavailable if record raises “even the slightest doubt” of existence of fact issue, because doubt must be resolved against movant) (citing Tretten v. Irrgang, 654 So.2d 1297 (Fla. 4th DCA 1995);
Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2nd DCA 1996) (summary judgment is improper if there is any issue, the possibility of an issue or the slightest doubt that an issues might exist.);
Besco USA Int’l Corp. V. Home Sav. Of Am. FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996) (if slightest doubt exists, summary judgment must be denied.);
Pinchot v. First Fla. Banks, Inc., 666 So.2d 201, 202 (Fla. 2nd DCA 1995 (the “possibility” of a fact issue or “slightest doubt” that a fact issue “might exist” precludes summary judgment);
Levine v. Constitution Bank, 640 So.2d 1202 (Fla. 2nd DCA 1994) (summary judgment must be denied if the “possibility of any issue” is reflected by the record, or the record raises “the slightest doubt that an issue might exist”);
Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Av. Mgmt., 637 So.2d 968, 969-70 (Fla. 5th DCA 1994) (summary judgment improper if the “slightest doubt remains”);
Cocoa Props., Inc. v. Commonwealth Land Title Ins. Co., 590 So.2d 989, 990 (Fla. 2nd DCA 1991) (“If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”); See also Star Lakes Estates Ass’n Auerbach, 656 So.2d 271, 274 (Fla. 3rd DCA 1995).

“It is within the trial court’s power, when a motion for summary judgment is made, to enter summary judgment against the moving party and in favor of the non-moving party, even when the non-moving party has not sought a summary judgment in its own favor by service and filing of a cross-motion.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.5[7], pg. 641.
Opler v. Wynne, 402 So.2d 1309, 1311 n. 1 (Fla. 3rd DCA 1981) (“A summary judgment may be entered for a non-moving party where the other party moves for summary judgment and the record discloses the non-moving party is entitled to summary judgment.”) (citing Carpineta v. Shields, 70 So.2d 573 (Fla. 1954); King v. L & L Investors, Inc., 133 So.2d 744 (Fla. 3rd DCA 1961). cert denied, 142 So.2d 93 (Fla. 1962)).

“Subdivision (e) is very clear in its requirement that all affidavits, whether submitted in support of on in opposition to a motion for summary judgment must be based upon “personal knowledge,” must present facts in proper evidentiary form, and must be submitted by a competent witness, three separately enunciated requirements that all mean the same thing.”
“Without personal knowledge, an affiant is not competent to testify to the facts, and is therefore in no position to present admissible testimony, which is essential to support or oppose summary judgment.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.7[1], pg. 642-43.
Elser v. Law Offices of James M. Russ, P.A., 679 So.2d 309, 312 (Fla. 5th DCA 1996) (moving affidavit insufficient where not made on personal knowledge, because the affiant was thus incompetent to testify to the matters set forth.) (citing Thompson v. Citizens Nat’l Bank, 433 So.2d 32, 33 (Fla. 5th DCA 1983) (cannot consider affidavit based on information and belief);
Florida Dep’t of Fin. Servs. V. Associated Indus. Ins. Co., 868 So.2d 600 (Fla. 1st DCA 2004) (supplemental affidavit based upon affiant’s “’understanding’ of the underlying issues and her ‘opinion’ of such issues,“ and upon hearsay should not have been considered).
Alvarez v. Fla. Ins. Guar, Ass’n, 661 So.2d 1230, 1232 (Fla. 3rd DCA 1995) (“The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” (quoting from Pawlik v. Barnett Bank, 528 So.2d 965, 966 (Fla. 1st DCA 1988);
CSX Transp. Inc. v. Pasco County, 660 So.2d 757, 759 (Fla. 2nd DCA 1995) (fact in affidavit based not upon personal knowledge but upon examination or reports not attached to the affidavit is hearsay and cannot support summary judgment.);

ubdivision (e) expressly requires attachment (or independent service) or all papers referred to in an affidavit. Attaching the documents would be unavailing, however, unless properly identified in the affidavit or otherwise properly authenticated under the code and rules of evidence.”
Berman’s Florida Civil Procedure, 2005 Edition, Rule 1.510 Summary Judgment, §510.7[2], pg. 644
Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617 (Fla. 2nd DCA 1997); Bifulco v. State Farm Mut. Ins. Co., 693 So.2d 707, 709-10 (Fla. 4th DCA 1997) (summary judgment not properly based upon documents attached to the motion that were neither authenticated in a sworn affidavit nor certified, as required by subdivision (e));
Nichols v. Preiser, 849 So.2d 478, 481 (Fla. 2nd DCA 2003) (citing Daeda and Bifulco);
Harris v. Wilson, 656 So.2d 512, 517 (Fla. 1st DCA 1995) (documents must be properly identified in affidavits to be considered; mere attachment to counsel’s supplemental response, without affidavit, is insufficient);
First N. Am. Nat’l Bank v. Hummel, 825 So.2d 502, 504 (Fla. 2nd DCA 2002) (noting that “documents [that] were not authenticated or supported by any affidavit or other evidentiary proof” should not have been considered on summary judgment motion.).
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summertime
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« Reply #6 on: September 01, 2006, 12:06:24 PM »

I can only think of one word to sum up this thread.  WOW!

Thank you very very much, fraudfighter!
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fraudfighter
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« Reply #7 on: September 01, 2006, 07:11:50 PM »

Quote from: "summertime"
I can only think of one word to sum up this thread.  WOW!

Thank you very very much, fraudfighter!


You got it.

Killer case law references at your fingertips, ready to plop in your pleadings to authorize them, and thus nuke the scumbags.
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bigman
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« Reply #8 on: June 10, 2007, 09:22:19 AM »

New to the board.  this may be one of the best I hav ever seen!!!!
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