HOME HEALTH SERVICES OF SARASOTA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MCQUAY-GARRETT, SULLIVAN & COMPANY, A FLORIDA CORPORATION, APPELLEE
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Home Health Services appealed a summary judgment entered against it on an account stated claim. The court reversed, finding that genuine issues of material fact existed regarding partial payments made to the creditor's authorized agent, which precluded summary judgment.
The court held that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding whether partial payments were made to the creditor's authorized agent and whether those payments were properly credited to the account.
[1] A genuine issue of material fact concerning partial payment may preclude summary judgment on an account stated.
[2] An account stated is prima facie evidence of correctness and liability, but this presumption can be overcome by proof of fraud, mistake, or error.
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“An account stated is prima facie evidence of the correctness of the items it contains and of the liability of a party for those items. One claiming under an account stated is not entitled, however, to the benefit of an absolute estoppel. The presumption of correctness may be overcome by proof of fraud, mistake, or error.”
Establishes that while an account stated creates a presumption of correctness, it is not conclusive and can be overcome by the defendant's affirmative defenses.
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Join FLexlaw to unlock all legal intelligenceMcQuay-Garrett, Sullivan & Company sued Home Health Services for $26,449 on an account stated. Home Health Services asserted a set-off defense, claimi…
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SCHOONOVER, Judge.
The appellant, Home Health Services of Sarasota, Inc., a Florida corporation, appeals from a final summary judgment entered in favor of the appellee, McQuay-Gar-rett, Sullivan & Company, a Florida corporation. We reverse.
Appellee filed an action against the appellant seeking damages, on an account stated, in the amount of $26,449. In its responsive pleading, appellant alleged as one of its affirmative defenses that it was entitled to a set-off for sums it had paid to appellee’s agent.
Appellee filed a motion for summary judgment. A portion of one of appellee’s affidavits filed in support of the motion stated that $26,449 was due on the account and that there existed no known set-offs to the account. Appellant’s affidavit in opposition to the motion stated that, in addition to the amounts paid directly to appellee for which it had received credit on the account, it had paid $13,650 on the account to appel-lee’s authorized agent. The trial court found that the appellee had established an account stated and that the appellant’s affirmative defenses and supporting affidavit did not raise a genuine issue of material fact. A summary judgment was entered in favor of the appellee, and the appellant filed a timely notice of appeal.
We find that the record reflects the existence of a genuine issue of material fact concerning partial payment; accordingly, we hold that the trial court erred in awarding a summary judgment to the appellee. See Monroe v. Appelton, 419 So. 2d 356 (Fla. 2d DCA 1982); Krest-View Nursing Home, Inc. v. Sokolow, 177 So. 2d 775 (Fla. 3d DCA 1965).
The trial court properly held that an account stated had been established. See Merrill-Stevens Dry Dock Co. v. “Corniche Express," 400 So. 2d 1286 (Fla. 3d DCA 1981); Dutch Inns of America, Inc. v. Jenkins, 301 So. 2d 119 (Fla. 3d DCA 1974). An account stated is prima facie evidence of the correctness of the items it contains and of the liability of a party for those items. One claiming under an account stated is not entitled, however, to the benefit of an absolute estoppel. The presumption of correctness may be overcome by proof of fraud, mistake, or error. The burden of establishing those defenses is on the party asserting them, and unless that party carries the burden, the presumptive correctness of the account stated becomes conclusive. Gendzier v. Bielecki, 97 So. 2d 604 (Fla.1957).
Appellant’s pleading and affidavit do not specifically allege error or mistake, but where affidavits submitted pursuant to a motion for summary judgment show that a genuine issue of material fact exists, we should look beyond the issues presented in the pleadings. A party should not be deprived of his full day in court if the record indicates that he has a bona fide potential defense. Beckerman v. Greenbaum, 347 So. 2d 141 (Fla. 2d DCA 1977). If the appellant, at trial, can prove that it made payments to an authorized agent of appellee and that because of mistake or error these payments were not credited to its account, proper credit should be given. Withers v. Sandlin, 44 Fla. 253, 32 So. 829 (1902). Reversed and remanded for proceedings consistent herewith.
GRIMES, A.C.J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Robert C. Malt & Co. v. Kelly Tractor Co., 518 So. 2d 991 (Fla. 4th DCA 1988)…overcome the presumption of correctness of an account stated by meeting the burden of proving fraud, mistake or error. See, e.g., Gendzier v. Bielecki, 97 So. 2d 604 (Fla.1957); Home Health Services of Sarasota v. McQuay-Garrett, Sullivan & Company, 462 So. 2d 605 (Fla. 2d DCA 1985). The denials in appellants' answer do not specifically raise error or mistake as an affirmative defense. However, the affidavits submitted by appellants do raise genuine issues of fact which, if proved and accepted at trial, woul…1 / 2
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Suris v. Tropical Fed. Sav. & Loan Ass'n, 515 So. 2d 1049 (Fla. 3d DCA 1987)…bona fide potential cause of action or defense.” Forte v. Tripp & Skrip, 339 So. 2d 698, 700 (Fla. 3d DCA 1976). Accord DeAtley v. McKinley, 497 So. 2d 962 (Fla. 1st DCA 1986); Home Health Servs. of Sarasota, Inc. v. McQuay-Garrett, Sullivan & Co., 462 So. 2d 605 (Fla. 2d DCA 1985); see Dalcamp, Inc. v. First Nat’l Bank of Hialeah, 366 So. 2d 153 (Fla. 3d DCA 1979) (where plaintiff moved for summary judgment which the trial court granted, defendant may amend pleadings). Contra Wyman v. Robbins, 513 So. 2d 23…
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Fla. Nat'l Bank v. Carr & Schnell, 540 So. 2d 217 (Fla. 2d DCA 1989)…effectively disposed of the complaint.3 We find that the bank’s affidavit presented a genuine issue of material fact. Accordingly, the summary judgment must be reversed. See Home Health Services of Sarasota, Inc. v. McQuay-Garrett, Sullivan & Co., 462 So. 2d 605 (Fla. 2d DCA 1985); Beckerman v. Greenbaum, 347 So. 2d 141 (Fla. 2d DCA 1977). REVERSED AND REMANDED. DANAHY, A.C.J., and LEHAN, J., concur. .The attorneys mislabeled the counts. Although the attorneys labeled the first count as "account stated,”…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gendzier v. Bielecki, 97 So. 2d 604 (Fla. 1957)
- Merrill-Stevens DRY Dock Co. v. "Corniche Express" & owner Myron Wisotsky, 400 So. 2d 1286 (Fla. 3d DCA 1981)
- Withers v. Sandlin, 44 Fla. 253 (Fla. 1902)
- Beckerman v. Greenbaum, 347 So. 2d 141 (Fla. 2d DCA 1977)
- Maxwell Owen Monroe v. Clark Appelton, 419 So. 2d 356 (Fla. 2d DCA 1982)
- Dutch Inns OF Am., Inc. v. Jenkins, 301 So. 2d 119 (Fla. 3d DCA 1974)
- Krest-View Nursing Home, Inc. v. Sokolow, 177 So. 2d 775 (Fla. 3d DCA 1965)