OTIS K. WIGGINS, A/K/A OTIS K. WIGGINS, A/K/A O.K. WIGGINS, APPELLANT,
v.
PORTMAY CORPORATION, A FLORIDA CORPORATION, APPELLEE
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Wiggins appeals a summary judgment in favor of Portmay Corporation on a debt collection claim. The court reversed, finding that genuine issues of material fact existed and that Wiggins' affidavit in opposition raised fact disputes rather than affirmative defenses.
Summary judgment was improper because Wiggins' affidavit did not raise affirmative defenses but rather presented genuine issues of material fact by denying the plaintiff's factual allegations. The affidavit merely disputed whether the funds constituted a loan versus an advancement or payment for services.
[1] Summary judgment is inappropriate when genuine issues of material fact exist.
[2] A party's affidavit in opposition to summary judgment may raise factual disputes that preclude summary judgment.
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“Affirmative defenses do not simply deny the facts of the opposing party's claim. They raise some new matter which defeats an otherwise apparently valid claim.”
Establishes the distinction between affirmative defenses and simple factual denials, which is central to the court's reversal.
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Join FLexlaw to unlock all legal intelligencePortmay filed suit against Wiggins seeking repayment of $11,350 allegedly loaned to him. Wiggins denied the allegations and filed an affidavit stating…
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MILLS, Judge.
Wiggins appeals the trial court’s order granting summary judgment in favor of Portmay. Because there are genuine issues of material fact, we reverse the order and remand for trial on the merits.
On 30 October 1981, Portmay filed suit against Wiggins, alleging that the corporation had loaned him $11,350 for which repayment was sought. Wiggins answered, denying generally the allegations contained in the complaint. Portmay subsequently moved for summary judgment.
In support of its motion, Portmay filed an affidavit made by the president of the cor poration, Abe Fletcher. In that affidavit, Fletcher alleged that he was the president of Portmay Corporation, that he had full and complete charge of the records relating to the debt owed by Wiggins, and that he was familiar with the facts of the case. The record shows that the checks which were given to Wiggins were all signed by Fletcher. Wiggins filed an affidavit in opposition to the motion for summary judgment. He stated in the affidavit that he had received $10,000 from Portmay as an advancement from the sale of a parcel of real estate and that he had received the remaining $1,350 as payment for services rendered.
The trial court awarded summary judgment to Portmay. In the final order, the court found that Portmay’s affidavit complied with Rule 1.510(e), Florida Rules of Civil Procedure. It further found that the matters recited in Wiggins’ affidavit constituted affirmative defenses and that, as such, they had been waived by Wiggins’ failure to raise them in his answer. While we agree that Portmay’s affidavit was sufficient under Rule 1.510(e), we cannot agree that an award of summary judgment was appropriate in this case.
If the matters set forth in Wiggins’ affidavit were affirmative defenses, they could not be raised by way of affidavit in opposition to a motion for summary judgment. Wingreen Company v. Montgomery Ward & Co., Inc., 171 So. 2d 408 (Fla. 3d DCA 1965). However, these matters do not constitute affirmative defenses.
Affirmative defenses do not simply deny the facts of the opposing party’s claim. They raise some new matter which defeats an otherwise apparently valid claim. Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432 (Fla. 2d DCA 1965). Parap-aph two of the complaint alleged that Wiggins was indebted to Portmay. Wiggins denied any indebtedness in both his answer and in his affidavit. The matters raised in Wiggins’ affidavit simply denied the facts contained in Portmay’s complaint and did not raise any new matters to defeat Portmay's claim.
Because the pleadings show the existence of genuine issues of material fact, we reverse the order appealed and remand the cause for trial.
JOANOS and THOMPSON, JJ., concur.
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Jones v. Fla. Ins. Guar. Ass'n, Inc., 908 So. 2d 435 (Fla. 2005)…the scene of a felony and was in the process of failing to respond to a marked police vehicle when the accident occurred. FIGA raises this argument presumably to invoke a policy exclusion applicable to intentional acts. See Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983) (“Affirmative defenses do not simply deny the facts of the opposing party’s claim. They raise some new matter which defeats an otherwise apparently valid claim.”). Florida courts have held that a defense based on a policy ex…
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Harris v. The Lewis State Bank, 436 So. 2d 338 (Fla. 1st DCA 1983)…position that the security guard was not acting as a bank employee at the time of the detention is a form of defense and may not be raised for the first time in an affidavit in support of a motion for summary judgment. See Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983) (affirmative defenses may not be raised in affidavits for summary judgment). . Harris alternatively contends that if summary judgment were proper this court should affirm the lower court’s judgment but, at the same time, sh…
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Gatt v. The Keyes Corp., 446 So. 2d 211 (Fla. 3d DCA 1984)…affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint. As such, the trial court acted properly in striking the second affirmative defense. Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. 1st DCA 1983); Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432 (Fla. 2d DCA), cert. denied, 177 So. 2d 475 (Fla.1965). Nonetheless, the denial by the seller, as well as his affidavit in opposition to the summary judgment, placed in issu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Wingreen Co. v. Montgomery Ward & Co., Inc., 171 So. 2d 408 (Fla. 3d DCA 1965)
- Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432 (Fla. 2d DCA 1965)