JOHN DEAN ELISON AND JEANNE MARIE ELISON, APPELLANTS,
v.
MARTIN B. GOODMAN, BARBARA B. GOODMAN, ALLAN M. GREENBERG AND ELLA G. GREENBERG, APPELLEES
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Homeowners Elison appealed the summary judgment dismissal of their cross-claim for construction defects in their new home on statute of limitations grounds. The trial court properly struck their contradictory affidavit attempting to change their deposition testimony about when they discovered the defects, as parties cannot alter sworn positions merely to avoid summary judgment without credible explanation.
The summary judgment is affirmed. The trial court properly struck the affidavit under the established rule that a party cannot alter a previously asserted position simply to avert summary judgment. The Elisons failed to provide a credible explanation for the discrepancy; merely referencing insurance documents without attaching them or describing their contents does not constitute a legally sufficient explanation.
[1] A party's unequivocal deposition testimony establishing notice of defects more than four years before filing suit can support summary judgment on statute of limitations g…
[2] A party may not file an affidavit in opposition to summary judgment that directly contradicts prior deposition testimony to create a genuine issue of material fact.
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Join FLexlaw to unlock all legal intelligence“a party is not permitted to alter a previously asserted position simply to avert summary judgment”
Establishes the core principle preventing the Elisons from contradicting their deposition testimony in their affidavit opposing summary judgment.
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Join FLexlaw to unlock all legal intelligenceThe Elisons filed a cross-claim against the Goodmans and Greenbergs for damages allegedly caused by construction defects in their newly constructed ho…
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SCHWARTZ, Judge.
The Elisons’ cross-claim for damages allegedly caused by construction defects in their new home was terminated by summary judgment on statute of limitation grounds, because unequivocal statements in their depositions established that they were on notice of the defects more than four years before the action was filed. Section 95.11(3), Florida Statutes (1979); Steiner v. Ciba-Geigy Corp., 364 So. 2d 47 (Fla. 3d DCA 1978), cert. denied, 373 So. 2d 461 (Fla. 1979). The judgment is affirmed, notwithstanding the filing of an affidavit in opposition to the summary judgment in which Mr. Elison directly contradicted his deposition testimony concerning the date of discovery, so as to bring it within the limitations period. The trial court properly struck this affidavit under the now well-settled rule, which had its genesis in Ellison v. Anderson, 74 So. 2d 680 (Fla.1954), that a party is not permitted to alter a previously asserted position simply to avert summary judgment. Accord, Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Home Loan Co., Inc. of Boston v. Sloane Co. of Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970); Williams v. Duggan, 172 So. 2d 844 (Fla. 1st DCA 1965); Tri-County Produce Distributors, Inc. v. Northeast Production Credit Ass'n, 160 So. 2d 46 (Fla. 1st DCA 1963); Bente v. Nelson, 156 So. 2d 17 (Fla. 2d DCA 1963); Kramer v. Landau, 113 So. 2d 756 (Fla. 3d DCA 1959).
Nor did the appellants bring themselves within the exception to this principle which arises when there is a “credible explanation by the affiant as to the reason for the discrepancy between his earlier and later opinions." [e. s.] Croft v. York, 244 So. 2d 161, 165 (Fla. 1st DCA 1971), cert. denied, 246 So. 2d 787 (Fla.1971).1 The affidavit did recite that Elison had changed his mind about the key date after examining certain insurance documents to which he had referred in the deposition.2 However, the papers were not themselves attached to the affidavit and their contents were not described in any way.3 So far as the record shows, therefore, the documents were entirely consistent with the earlier deposition and inconsistent with the later affidavit.4 Hence, no legally sufficient reason or explanation for the change in testimony was presented. We do not mean to imply that the Ellison rule should be rigidly applied so as absolutely to foreclose a party who has made an honest mistake. But more than an unsubstantiated assertion that such an error has occurred is required to overcome the effect of previous sworn testimony. As a practical matter, that is all the appellants did or attempted to do below. The summary judgment against them is therefore
Affirmed.
. See also, Koflen v. Great Atlantic & Pacific Tea Co., 177 So. 2d 529 (Fla. 3d DCA 1965).
. Mrs. Elison’s deposition had confirmed her husband’s testimony on this point. There was no attempt whatever to explain the deviation from her deposition embodied in the opposition to the motion for summary judgment.
. On this issue, the affidavit said simply,
the Affiant has reviewed said insurance papers concerning State Farm Insurance Company’s inspection of the premises, and Affi-ant has discovered that the year was 1976 and not 1974 or 1975.
.It should also be noted that since the appellants’ counter-affidavit was stricken simultaneously with the entry of summary judgment, any defects in the affidavit, including the failure to submit or describe the documents, could have been corrected by a motion for rehearing. Holl v. Talcott, 191 So. 2d 40, 46-47, 48 (Fla. 1966). The fact that no such motion was filed strongly indicates that the documents would not have supported the Elisons’ present position.
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Cited By (21 total)
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Willage v. The LAW Offs. OF Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982)…by a subsequent affidavit of the same witness so long as the explanation is credible, and not inconsistent with the previous sworn testimony, even though the effect of the explanatory testimony is to negate any issue of fact.3 Cf. Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981) (where there was no credible explanation by affidavit as to discrepancies between earlier testimony and later inconsistent testimony, later testimony stricken). Summary judgment is AFFIRMED. .Affidavit of Grover M. Moskowitz sta…
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Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921 (Fla. 4th DCA 1997)…ablished that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony. Ellison v. Anderson, 74 So. 2d 680 (Fla.1954); Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981); Willage v. Law Offices of Wallace and Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982); Cary v. Keene Corp., 472 So. 2d 851 (Fla. 1st DCA), rev. denied, 480 So. 2d 1294 (1985). A limited exception to this rule arises where there…
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Soler v. Secondary Holdings, Inc., 771 So. 2d 62 (Fla. 3d DCA 2000)…his July 10,1997 deposition. It is well settled that where there is no credible explanation for discrepancies between earlier unequivocal testimony and later inconsistent testimony, that the later testimony will be stricken. See Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981). See also Arnold v. Dollar Gen. Corp., 632 So. 2d 1144 (Fla. 5th DCA 1994)(party to lawsuit will not be allowed to repudiate his or her prior deposition testimony by affidavit executed by that party or by another person, without a…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Ellison v. Johnson Anderson, 74 So. 2d 680 (Fla. 1954)
- Quiroga v. State, 364 So. 2d 47 (Fla. 3d DCA 1978)
- Tri-County Produce Distribs., Inc. v. Ne. Prod. Credit Ass'n, 160 So. 2d 46 (Fla. 1st DCA 1963)
- Inman v. The Club ON Sailboat KEY, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977)
- Croft v. York, 244 So. 2d 161 (Fla. 1st DCA 1971)
- Kramer v. Landau, 113 So. 2d 756 (Fla. 3d DCA 1959)
- Home Loan Co. Inc. OF Boston v. The Sloane Co. OF Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970)
- Siri Koflen and William Koflen v. The Great Atl. & Pac. TEA Co., Inc., 177 So. 2d 529 (Fla. 3d DCA 1965)
- Forsyth v. Nat'l Airlines, Inc., 246 So. 2d 787 (Fla. 1971)