DATA LEASE FINANCIAL CORP., ETC., APPELLANT,
v.
FOREMOST INSURANCE COMPANY, ETC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Data Lease Financial Corp. appealed a summary judgment in favor of Foremost Insurance Company regarding an alleged antecedent debt. The court affirmed the summary judgment, clarifying that while inconsistent defenses may be alleged, the defendant failed to create a genuine issue of material fact regarding the existence of the debt.
Summary judgment was properly entered because the defendant's counter-affidavit failed to create a genuine issue of material fact regarding the antecedent debt. Once the plaintiff presented evidence of the debt's existence, the defendant was required to submit supporting affidavit evidence to refute the claim, which it failed to do.
[1] A defendant may plead inconsistent defenses in its answer and affirmative defenses.
[2] A party opposing summary judgment must submit evidence by affidavit to refute the opposing party's claim once evidence of indebtedness has been presented.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is no question that there can be inconsistent defenses alleged by the defendant in its answer and affirmative defenses.”
Establishes that a defendant may plead inconsistent defenses, but this does not cure procedural failures at summary judgment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMobile Agency, Inc. had business transactions with Data Lease Financial Corp., which was owed $154,837.02 as of February 4, 1977. Data Lease forwarded…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Inconsistent Defenses cases and more on FLexlaw
GLICKSTEIN, Judge.
This court issued its opinion in this case on November 28, 1979, wherein we stated that appellant’s answer admitted the existence of an antecedent debt. The answer actually denied its existence even though the four affirmative defenses alleged the debt existed. There is no question that there can be inconsistent defenses alleged by the defendant in its answer and affirmative defenses. Accordingly, the previously issued opinion is modified to eliminate therefrom any reference to the answer of appellant admitting the existence of an antecedent debt. The modification, however, does not change the result.
The manager of the Mid-Atlantic Division of Foremost Insurance executed the affidavit in support of the motion for summary judgment. Paragraph 3 thereof states:
3. Prior to on or about February 4,1977, Mobile Agency, Inc., had business transactions with Plaintiff, as a result of which Plaintiff was owed the sum of $154,837.02. In accordance with its agreements, Plaintiff did forward monthly statements as to the account.
If there were a genuine issue as to the existence of the antecedent debt on February 4, 1977, it was incumbent upon the defendant to submit evidence by affidavit in support of its defenses to refute plaintiff’s claim, once the plaintiff had submitted evidence setting forth the presence of this indebtedness. See Howdeshell v. First National Bank of Clearwater, 369 So. 2d 432 (Fla. 2d DCA 1979). Instead, paragraph 1 of the affidavit in opposition to the motion for summary judgment alleges that “the statements made in the Answer to the Complaint and Affirmative Defenses are true” and paragraph 3 of the latter affidavit says:
3. It has not been established what amounts, if any, Mobile Agency, Inc., owes to the Plaintiff, and because of this the notes sued upon are not in default inasmuch as they were assigned merely to secure whatever debt Mobile Agency, Inc., owed to Plaintiff.
Section 673.303(1), (2), Florida Statutes (1979), provides that a holder takes the instrument for value:
(1) To the extent that the agreed consideration has been performed or that he acquires a security interest in or a lien on the instrument otherwise than by legal process; or (2) When he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due . . .
In our opinion the counter-affidavit failed to create a genuine issue; therefore, we affirm.
The issue of damages remains to be tried.
AFFIRMED.
MOORE and BERANEK, JJ., concur.