VALHALLA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MICHAEL CARBO, APPELLEE
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Valhalla, Inc. appealed a summary judgment in a foreclosure action filed by Carbo, contending that a party moving for summary judgment before the defendant's answer is filed must affirmatively prove no genuine issue of material fact exists rather than merely disproving defenses later raised. The court agreed and reversed.
When a party moves for summary judgment before the defendant's answer is filed, the moving party bears the burden of conclusively establishing that no answer which the defendant might properly serve could present a genuine issue of material fact, not merely disproving defenses ultimately raised in the answer.
[1] A party moving for summary judgment before an answer is filed must conclusively establish that no answer which the defendant might properly serve could present a genuine…
[2] A motion for summary judgment filed prior to the defendant's answer requires the moving party to disprove defenses that might ultimately be raised in the answer.
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Join FLexlaw to unlock all legal intelligence“whether a plaintiff who is moving for Summary Judgment, prior to the Answer being filed by the defendant, must merely disprove the defenses ultimately raised in the Answer or, in the alternative, whether the party moving for Summary Judgment under such circumstances has the burden of conclusively establishing that no answer which the defendants might properly serve could present a genuine issue of material fact.”
Statement of the central legal issue presented in the case
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Join FLexlaw to unlock all legal intelligenceCarbo filed a foreclosure action against Valhalla concerning property that was the subject of another pending lawsuit where Valhalla was plaintiff. Va…
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LEVY, DAVID L., Associate Judge.
Appellee filed a foreclosure action concerning the same property that was the subject of a lawsuit that was pending wherein the appellant was the plaintiff. Appellant responded in the foreclosure action by filing a Motion for More Definite Statement, which motion was granted. Ap-pellee then complied with the granting of the said motion by filing an amendment to its Complaint. Thereafter, the appellant filed its Motion to Dismiss the Amended Complaint. The Court denied the Motion to Dismiss the Amended Complaint, and gave the appellant twenty days to file its Answer in the foreclosure suit. The Answer was timely filed by the appellant on March 18, 1985.
In the meantime, on January 30, 1985, the appellee filed a Motion for Summary Judgment of Foreclosure. The hearing on appellee’s Motion for Summary Judgment was held before the expiration of the twenty-day period that appellant had been allowed for the filing of its Answer. The appellant filed its Answer, in a timely manner, on a date after the hearing on appel-lee’s Motion for Summary Judgment, but before the date on which the Court rendered its ruling granting the appellee’s Motion for Summary Judgment.
This case presents the issue of whether a plaintiff who is moving for Summary Judgment, prior to the Answer being filed by the defendant, must merely disprove the defenses ultimately raised in the Answer or, in the alternative, whether the party moving for Summary Judgment under such circumstances has the burden of conclusively establishing that no answer which the defendants might properly serve could present a genuine issue of material fact. The appellant argues that the latter is the correct standard. We agree and reverse. Devos v. Steel Fabricators, 473 So. 2d 1320 (Fla. 4th DCA 1985); South Florida Water Management District v. Muroff, 450 So. 2d 1258 (Fla. 4th DCA 1984); Gutterman v. Musicant-Kreitzman, 426 So. 2d 1216 (Fla. 4th DCA 1983).
Accordingly, the judgment granting a Summary Judgment to the appellee is reversed, with this cause remanded to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
HERSEY, C.J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Redento R. Rodriguez & Luisa N. Rodriguez, 635 So. 2d 125 (Fla. 3d DCA 1994)…ercept the presentation of any such defensive matter through the entry of a summary judgment.” Olin’s, Inc. v. Avis Rental Car System of Florida, Inc., 105 So. 2d 497, 498-99 (Fla. 3d DCA 1958) (citations omitted); see also Valhalla, Inc. v. Carbo, 487 So. 2d 1125, 1126 (Fla. 4th DCA 1986); Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 25-6 (1993 ed.) Assuming arguendo that the defendants’ affidavits were untimely, the showing made by plaintiff still falls well short of satisfying the burde…
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Greene v. Lifestyle Builders OF Orlando, Inc., 985 So. 2d 588 (Fla. 5th DCA 2008)…e. Under these circumstances, Appellee had an “unusually heavy” burden to conclusively negate every defense that might be presented in the answer. Rodriguez v. Tri-Square Const., Inc., 635 So. 2d 125, 126 (Fla. 3d DCA 1994); Valhalla, Inc. v. Carbo, 487 So. 2d 1125, 1126 (Fla. 4th DCA 1986); Madison v. Haynes, 220 So. 2d 44, 46 (Fla. 4th DCA 1969). When the court orally granted summary judgment during the original hearing, it did not have the benefit of Appellant’s answer. At the subsequent hearing, the court…
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Douglas v. Deutsche Bank Tr. Co., 995 So. 2d 1144 (Fla. 5th DCA 2008)…the burden of conclusively establishing that no answer which the Douglases might have served could present a genuine issue of material fact. Greene v. Lifestyle Builders of Orlando, Inc., 985 So. 2d 588 (Fla. 5th DCA 2008); Valhalla, Inc. v. Carbo, 487 So. 2d 1125 (Fla. 4th DCA 1986). See Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure, § 25:6 (2007-08 ed.). While we find no viable defense to foreclosure, we conclude a viable defense to the amount recoverable by the Bank exists and requires…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gutterman-Musicant-Kreitzman, Inc. v. I.G. Realty Co., 426 So. 2d 1216 (Fla. 4th DCA 1983)
- S. Fla. Water Mgmt. Dist. v. Muroff, 450 So. 2d 1258 (Fla. 4th DCA 1984)
- Devos v. Steel Fabricators, Inc., 473 So. 2d 1320 (Fla. 4th DCA 1985)