MISAL CONSTRUCTION COMPANY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
RUSCO INDUSTRIES, INC., A CORPORATION, D/B/A LOOK PRODUCTS, APPELLEE
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Misal Construction appeals a summary judgment entered in favor of Rusco Industries on breach of contract and account stated claims. The court reversed, finding that answers to interrogatories created genuine issues of material fact precluding summary judgment despite Rusco's supporting affidavit.
Summary judgment was improper because the answers to interrogatories, despite being inadequate in form, demonstrated a genuine issue of material fact regarding whether goods were damaged and whether Rusco failed to correct agreed-upon deficiencies, precluding summary adjudication.
[1] A party opposing a motion for summary judgment is not required to file a counter-affidavit if the court file contains other competent proof, such as answers to interrogat…
[2] Answers to interrogatories can create a genuine issue of material fact, precluding summary judgment, even if the answers are monosyllabic.
Previewing 2 of 3 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“If the court file contains other competent proof such as depositions, admissions, or answers to interrogatories, which contradicts the moving party's claim, it is not necessary for the non-moving party also to file an affidavit to counter the movant's affidavit.”
Establishes the standard that a non-moving party need not file a counter-affidavit if other evidence in the record contradicts the summary judgment motion.
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Join FLexlaw to unlock all legal intelligenceRusco sued Misal for $2,544.48 in two counts: one for goods/services allegedly owed and one for account stated. Misal admitted business dealings but a…
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PER CURIAM.
Appellee Rusco Industries, Inc., sued appellant Misal Construction Company, Inc., in two counts, a) for $2,544.48 due and owing according to an account attached to the complaint and b) for $2,544.48 based upon an account stated. Misal’s answer contained a general denial of all the crucial allegations of the complaint except that it admitted having had business dealings with appellee. The answer also contained an affirmative defense of failure of consideration resulting from failure to deliver goods contracted for and furnishing defective and inferior workmanship and materials. The trial court entered summary judgment for Rusco and this appeal ensued.
Rusco filed an affidavit in support of its motion for summary judgment, stating that Misal was indebted to Rusco in the sum of $2,544.48. Thus, while the affidavit is no model it might be sufficient to prove Count I. However, it states nothing in support of the second count, which is based on an account stated. But more importantly the affidavit is insufficient to carry the day because there are answers to interrogatories that show that a genuine issue of fact remains in the case. Rusco filed some 29 interrogatories to Misal which Misal answered in almost monosylabie fashion. The answers would certainly justify a motion to compel better answers. However inadequate the responses may appear, they unquestionably demonstrate a genuine issue of material fact between these parties. For example, one answer admits Misal ordered goods, merchandise, and services from Rus-co. But various other answers support Mis-aks pleadings in that the answers to interrogatories asserted the goods in question were damaged and that Rusco agreed to correct certain deficiencies but did not do so.
Much of the argument in the briefs deal with the contention that the party moved against must file a counter-affidavit or suffer summary judgment. This, of course, is not correct. If the court file contains other competent proof such as depositions, admissions, or answers to interrogatories, which contradicts the moving party’s claim, it is not necessary for the non-moving party also to file an affidavit to counter the movant’s affidavit. That is not to say that good practice may not often suggest also filing an affidavit so as to point up the contradicting statements which may be buried throughout a voluminous court file.
We believe this record demonstrates sufficient evidence of genuine issues of material fact to require a trial or at least further discovery before summarily terminating the litigation.
REVERSED AND REMANDED.
DOWNEY, ANSTEAD and MOORE, JJ., concur.
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Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865 (Fla. 2d DCA 2011)…missions, or answers to interrogatories, that contradicts the moving party’s claim. See Semoran Pines Condo. Ass’n v. Arab Termite & Pest Control of Fla., Inc., 543 So. 2d 417, 418 (Fla. 5th DCA 1989) (citing Misal Constr. Co. v. Rusco Indus., Inc., 403 So. 2d 607 (Fla. 4th DCA 1981)); see also Koresko v. Coe, 683 So. 2d 602, 603 (Fla. 2d DCA [*870] 1996) (holding that a party attempting to defeat a motion for summary judgment was not required to file an affidavit to counter the movant’s affidavit when the al…
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Elliott v. Dugger, 542 So. 2d 392 (Fla. 1st DCA 1989)…ssues except insofar as to emphasize that it is not necessary for the party opposing a motion for summary judgment to file an affidavit to counter the movant’s affidavit. Connell v. Sledge; Misal Construction Company, Inc. v. Rusco Industries, Inc., 403 So. 2d 607 (Fla. 4th DCA 1981). Further, the court was authorized to consider the deposition filed the day of the hearing since it was taken pursuant to notice and was physically in existence “before the court,” satisfying the provision of rule 1.510(c), Flori…
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Semoran Pines Condo. Ass'n v. Arab Termite & Pest Control OF Fla., Inc., 543 So. 2d 417 (Fla. 5th DCA 1989)…s, admissions, or answers to interrogatories, which contradicts the moving party’s claim, it is not necessary for the nonmoving party to file an affidavit to counter the movant’s affidavit. Misal Construction Company, Inc. v. Rusco Industries, Inc., 403 So. 2d 607 (Fla. 4th DCA 1981). Here the affidavit of Owen Funk, which the trial court properly considered, failed to conclusively establish that Arab of Florida had no liability to Semoran. Nowhere on the contract form does the name “Arab Pest Control of Orla…
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