JOAQUIN ESTEBAN, APPELLANT,
v.
SANDRA CORDOBA AND JAIME CORDOBA, APPELLEES; JAIME CORDOBA AND JOAQUIN ESTEBAN, APPELLANTS, V. SANDRA CORDOBA, APPELLEE
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This consolidated appeal challenges a summary judgment voiding a mortgage held by Esteban and a final judgment awarding Jaime Cordoba's interest in jointly held property to Sandra Cordoba as lump sum alimony. The court reversed both decisions, finding that genuine issues of material fact existed regarding the validity of the mortgage and the power of attorney used to procure it, precluding summary judgment.
Summary judgment was improper because Sandra Cordoba failed to conclusively establish the absence of a genuine issue of material fact, particularly regarding whether the power of attorney had been revoked or improperly used. The alimony award must be reversed and remanded because it was predicated on the erroneous assumption that the jointly held property was unencumbered.
[1] Summary judgment may not be entered if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other evidence raise any doubt upon an issue of…
[2] The burden of proving the absence of a genuine issue of material fact rests on the party moving for summary judgment.
Previewing 2 of 6 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“It is axiomatic that summary judgment may not be used as a substitute for trial and that if the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered.”
Establishes the strict standard for granting summary judgment and the requirement that all doubts about material facts be resolved against granting summary judgment.
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Join FLexlaw to unlock all legal intelligenceEsteban held a mortgage on property jointly held by Jaime and Sandra Cordoba. The mortgage was procured using a power of attorney. Sandra Cordoba soug…
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PER CURIAM.
This is a consolidated appeal from an order granting summary judgment and voiding a mortgage held by appellant Esteban, and from a final judgment awarding Sandra Cordoba, as lump sum alimony, Jaime Cordoba’s interest in their jointly held property. We reverse.
“It is axiomatic that summary judgment may not be used as a substitute for trial and that if the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered.” Unijax, Inc. v. Factory Insurance Association, 328 So. 2d 448, 449 (Fla. 1st DCA 1976), cert. denied, 341 So. 2d 1086 (Fla.1976). Furthermore, “[T]he burden of proving the absence of a genuine issue of material fact is upon the party moving for summary judgment . . . . ” Steinhardt v. Lehman, 338 So. 2d 64, 65 (Fla. 3d DCA 1976). Applying these dual standards to the case at bar, we find that appellee, Sandra Cordoba, failed to establish conclusively the absence of a genuine issue of material fact. For example, although she advanced the legal conclusion that the mortgage in question was invalid, she failed to establish facts showing that the power of attorney utilized to procure the mortgage had been revoked or was otherwise improperly used. Moreover, appellee totally failed to either disprove the affirmative defenses asserted by appellants or establish the legal insufficiency of those defenses. See Bunner v. Florida Coast Bank, 390 So. 2d 126 (Fla. 4th DCA 1980). Therefore, we reverse the order granting summary judgment.
In light of the above action, we are also compelled to reverse those portions of the final judgment which awarded Jaime Cordoba’s interest in the jointly held property to Sandra Cordoba, and which awarded Sandra Cordoba’s interest in certain property in Columbia to Jaime Cordoba. Both awards were predicated upon the belief that the jointly held property was unencumbered. Since that is no longer certain, the trial court should have the flexibility to reconsider the issue of alimony. Cf. Eagan v. Eagan, 392 So. 2d 988 (Fla. 5th DCA 1981). In taking this course, we express no opinion as to the form or amount of the prior award.
REVERSED and REMANDED.
MOORE, BERANEK and HURLEY, JJ., concur.
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Cited By
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Allstate Ins. Co. v. Arvida Corp., 421 So. 2d 741 (Fla. 4th DCA 1982)…nt asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Bunner v. Florida Coast Bank, 390 So. 2d 126, 127 (Fla. 4th DCA 1980); see also Esteban v. Cordoba, 398 So. 2d 481 (Fla. 4th DCA 1981). National West did neither. If anything, the supporting and opposing affidavits in this case firmly indicate the existence of genuine issues of material fact regarding timely notice and resulting prejudice. See American Fire & Ca…
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Brown v. Brown, 429 So. 2d 846 (Fla. 4th DCA 1983)…iew of the changes required by this appellate opinion. The trial court may, in its discretion, do this based on the present record or additional testimony may be taken. Eagan v. Eagan, 392 So. 2d 988 (Fla. 5th DCA 1981). See also Esteban v. Cordoba, 398 So. 2d 481 (Fla. 4th DCA 1981) and Goss v. Goss, 400 So. 2d 518 (Fla. 4th DCA 1981). Reversed and remanded with instructions. HERSEY and HURLEY, JJ., concur.…
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Elkins v. Barbella, 603 So. 2d 726 (Fla. 4th DCA 1992)…ion v. Kirian, 579 So. 2d 730 (Fla.1991); Martin v. Lacertosa, 545 So. 2d 526 (Fla. 4th DCA 1989); Lunken v. Glatter, 451 So. 2d 970 (Fla. 4th DCA 1984); Allstate Insurance Co. v. Arvida Corp., 421 So. 2d 741 (Fla. 4th DCA 1982); Esteban v. Cordoba, 398 So. 2d 481 (Fla. 4th DCA 1981); and Bunner v. Florida Coast Bank of Coral Springs, 390 So. 2d 126 (Fla. 4th DCA 1980). Here, Barbella has merely denied the affirmative defenses, and her affidavit supported only the allegations in her complaint without addres…
Authorities Cited
- Unijax, Inc. v. Factory Ins. Ass'n, 328 So. 2d 448 (Fla. 1st DCA 1976)
- McQUIGGAN v. State, 392 So. 2d 988 (Fla. 5th DCA 1981)
- Eagan v. Eagan, 392 So. 2d 988 (Fla. 5th DCA 1981)
- Bunner v. Fla. Coast Bank OF Coral Springs, N.A., 390 So. 2d 126 (Fla. 4th DCA 1980)
- Steinhardt v. Lehman, 338 So. 2d 64 (Fla. 3d DCA 1976)