ANTHONY D. NOUR, D/B/A NOUR REFRIGERATION, APPELLANT,
v.
ALL STATE PIPE SUPPLY COMPANY, APPELLEE
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All State Pipe Supply Company sued Anthony Nour for money due on account and goods sold and delivered, obtaining summary judgment. The First District Court of Appeal reversed, holding that All State's affidavit in support of summary judgment was insufficient as a matter of law because it merely restated the complaint allegations without providing specific facts.
An affidavit that merely restates the allegations of the complaint and includes conclusory statements that the affiant is "personally knowledgeable" is legally insufficient to support summary judgment when the defendant has filed a general denial. The movant bears the burden of establishing the absence of any genuine issue of material fact.
[1] An affidavit in support of a motion for summary judgment is insufficient if it merely states that the affiant is personally knowledgeable of the allegations, as this is a…
[2] A party moving for summary judgment bears the burden of establishing the absence of any genuine issue of fact and entitlement to judgment as a matter of law, even if the…
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Join FLexlaw to unlock all legal intelligence“All State's motion for summary judgment was accompanied by an affidavit which in legal effect amounts to nothing more than a statement by an officer of the company that the allegations of the complaint are true.”
Establishes the defect in the affidavit—it merely restates the complaint rather than providing independent factual support
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Join FLexlaw to unlock all legal intelligenceAll State Pipe Supply Company filed a three-count complaint against Nour for money due on account, account stated, and goods sold and delivered. All S…
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PER CURIAM.
All State Pipe Supply Company, appellee, filed a three-count complaint against Anthony D. Nour, d/b/a Nour Refrigeration, appellant, alleging money due on account, account stated, and for goods sold and delivered. The trial court granted summary judgment for All State. We reverse.
All State’s motion for summary judgment was accompanied by an affidavit which in legal effect amounts to nothing more than a statement by an officer of the company that the allegations of the complaint are true. The addition of the phrase that the affiant is “personally knowledgeable” with respect to the allegations of the complaint adds nothing, since it is not a statement of fact, but is itself a mere conclusion or opinion of the affiant. In the face of appellant’s answer denying all allegations of the complaint, appellee’s affidavit is insufficient. Silber v. Campus Sweater & Sportswear, 313 So. 2d 409 (Fla. 1st DCA 1975); Montejo Investments, N. V. v. The Green Companies, Inc., of Florida, 471 So. 2d 158 (Fla. 3d DCA 1985); Thomasson v. The Money Store/Florida, Inc., 464 So. 2d 1309 (Fla. 4th DCA 1985); Rule 1.510(e), Florida Rules of Civil Procedure. The fact that appellant’s counter-affidavit in opposition is affected with the same inadequacies as that of appellee is immaterial, since the burden is upon the movant to establish the absence of any genuine issue of fact and the entitlement to judgment as a matter of law.
Appellee’s claim for attorney’s fees is apparently based upon contract. Accordingly, this claim must be pled and proved as part of the damages claimed, and the entitlement to and amount recoverable are issues to be determined on remand. River Road Construction Company v. Ring Power Corporation, 454 So. 2d 38 (Fla. 1st DCA 1984). The record and the briefs filed here by both parties are totally inadequate to merit further discussion of the attorney’s fee issue by this court.
Appellant has shown no abuse of discretion in the trial court’s denial of his motion to amend his answer to claim a setoff against the amounts claimed by appellee, and this ruling is accordingly affirmed.
The judgment for damages, including the award of attorney’s fees, is reversed, and the cause is remanded for further proceedings consistent with this opinion.
MILLS, L. SMITH and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)…that attorney’s fees sought pursuant to contract must be pled. E.g., Millard v. Brannan, 553 So. 2d 1248 (Fla. 2d DCA 1989); Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co., 498 So. 2d 1346 (Fla. 5th DCA 1986); Nour v. All State Pipe Supply Co., 487 So. 2d 1204 (Fla. 1st DCA 1986). The Fourth District Court of Appeal in this case and the Third District Court of Appeal in Protean Investors, Inc. v. Travel [*837] Etc., Inc., 519 So. 2d 7 (Fla. 3d DCA), review denied, 518 So. 2d 1277 (Fla. 1987), interpreted…
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Alvarez v. Fla. Ins. Guar. Ass'n, Inc., 661 So. 2d 1230 (Fla. 3d DCA 1995)…ontejo Inv., N.V. v. The Green Cos., 471 So. 2d 158, 159 (Fla. 3d DCA 1985). Nor would a corporate officer’s affidavit which merely states conclusions or opinion be sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., 487 So. 2d 1204, 1205 (Fla. 1st DCA 1986).…
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Protean Invs., Inc. v. Travel ETC., Inc., 519 So. 2d 7 (Fla. 3d DCA 1987)…is court’s holding in Marrero differs from the result reached by other district courts of appeal. See, e.g., Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. of Eastern Fla., 498 So. 2d 1346 (Fla. 5th DCA 1986); Nour v. All State Pipe Supply Co., 487 So. 2d 1204 (Fla. 1st DCA 1986); Coons v. Shriver, 429 So. 2d 27 (Fla. 2d DCA 1983); Brown v. Gardens By the Sea South Condominium Ass’n, 424 So. 2d 181, 182 (Fla. 4th DCA 1983). However, in light of the subsequent supreme court rulings in Cheek and Finkelstein…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blue Cross & Blue Shield OF Fla., Inc. v. Walters, 454 So. 2d 38 (Fla. 3d DCA 1984)
- Montejo Invs., N.V. v. The Green Cos., Inc., 471 So. 2d 158 (Fla. 3d DCA 1985)
- Silber v. Campus Sweater & Sportswear, 313 So. 2d 409 (Fla. 1st DCA 1975)
- Danziger v. Westwood Gardens, Inc., 464 So. 2d 1309 (Fla. 4th DCA 1985)