Summary Judgement

(1/2) > >>

Florida Debtor:
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.)

Florida Debtor:
“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)

fraudfighter:
“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)

fraudfighter:
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.

fraudfighter:
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)

Navigation

[0] Message Index

[#] Next page