ROBERTO SURIS, APPELLANT,
v.
TROPICAL FEDERAL SAVINGS & LOAN ASSOCIATION, APPELLEE
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Tropical Federal Savings & Loan sued Roberto Suris for failing to make payments on a promissory note. Suris denied executing the note and filed an affidavit stating the signature was not his, but the trial court granted summary judgment for Tropical Federal anyway. The appellate court reversed, holding that the trial court erred in granting summary judgment when the defendant's affidavit raised a genuine issue of material fact regarding whether Suris signed the note.
The trial court erred in granting summary judgment. Although a party must typically plead affirmative defenses or raise them properly, an appellate court may look beyond the pleadings to ensure that a party is not deprived of a full hearing by summary proceedings when the record indicates a bona fide potential defense exists. Here, Suris's affidavit raised a genuine issue of material fact that should have resulted in denial of the summary judgment motion.
[1] A trial court may consider defenses raised in an affidavit opposing summary judgment, even if not explicitly pleaded, to prevent a party from being deprived of their day…
[2] A defendant's affidavit asserting that a signature on a promissory note is not theirs raises a genuine issue of material fact sufficient to deny a motion for summary judg…
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 appellate court may look beyond the issues presented in the pleadings to ensure that a party is "not deprived of his full day in court by summary proceedings, if the record indicates that he has a bona fide potential cause of action or defense."”
Establishes the exception allowing courts to examine beyond pleadings when summary judgment would deprive a party of a full hearing on a legitimate defense.
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Join FLexlaw to unlock all legal intelligenceTropical Federal filed a complaint alleging that Suris failed to make installment payments on a promissory note he allegedly executed and delivered to…
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PER CURIAM.
Tropical Federal Savings and Loan [Tropical Federal] filed a complaint against Roberto Suris alleging that Suris had failed to make installment payments on the promissory note it contended he executed and delivered to Tropical Federal. Suris answered the complaint, denying every allegation. Tropical Federal then filed a motion for summary judgment and a supporting affidavit. In opposition to the motion, Suris filed an affidavit in which he swore that the signature on the promissory note was not his.
Nevertheless, the trial court entered summary judgment in favor of Tropical Federal. Suris appealed, challenging the trial court’s failure to consider the defenses he presented in the affidavit opposing summary judgment and the trial court’s consequent entry of final judgment in favor of Tropical Federal.
We reverse.
Although the failure to plead an affirmative defense waives the issue, Syncom Corp. v. Bank Leumi Trust Co. of N.Y., 479 So. 2d 207 (Fla. 3d DCA 1985); SAC Constr. Co. v. Eagle Nat’l Bank of Miami, 449 So. 2d 301 (Fla. 3d DCA 1984); see Lipton v. Southeast First Nat’l Bank, 343 So. 2d 927 (Fla. 3d DCA 1977) (forgery must be raised by specific allegation in answer); § 673.307, Fla.Stat. (1985), and mere assertions in an affidavit do not constitute a well-pled defense to a motion for summary judgment, Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971)1, an appellate court may look beyond the issues presented in the pleadings to ensure that a party is “not deprived of his full day in court by summary proceedings, if the record indicates that he has a 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 230 (Fla. 1st DCA 1987). In the case before us, the record disclosed such a defense to the motion for summary judgment. Defendant’s affidavit raised the existence of a genuine issue of material fact, and the trial court should have denied the motion.
Our disposition of this issue makes it unnecessary to reach Suris’ additional point.
Reversed and remanded.
. But see Coral Ridge Prop. v. Playa Del Mar Ass’n, 505 So. 2d 414 (Fla.1987) (defendant may file a motion for summary judgment without first asserting affirmative defense in answer).
Cases With Similar Vibessemantic neighbors from the corpus
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Mosley v. Am. Med. Int'l, Inc., 712 So. 2d 1149 (Fla. 4th DCA 1998)…ues presented in the pleadings to ensure that a party is ‘not deprived of his full day in court by summary proceedings, if the record indicates that he has a bona fide potential cause of action or defense’.” Suris v. Tropical Fed. Sav. & Loan Ass’n, 515 So. 2d 1049, 1050 (Fla. 3d DCA 1987) (quoting Forte v. Tripp & Skrip, 339 So. 2d 698, 700 (Fla. 3d DCA 1976)); DeAtley v. McKinley, 497 So. 2d 962 (Fla. 1st DCA 1986). In an affidavit submitted in response to the motion for summary judgment, appellant stated th…
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Burton Ginsberg v. Solomon, 651 So. 2d 183 (Fla. 3d DCA 1995)…ees. We return this matter to the trial court for a trial on the issue of fraud in the execution of the document which purports to place title to the property in question in the appellee. See and compare Suris v. Tropical Fed. Savings & Loan Assoc., 515 So. 2d 1049 (Fla. 3d DCA 1987); Forte v. Tripp & Skip, 339 So. 2d 698 (Fla. 3d DCA 1976). Affirmed in part, reversed in part, with directions.…
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Cosme v. Bailen Automocion, S.A., 580 So. 2d 344 (Fla. 3d DCA 1991)…based upon a finding that genuine issues of material fact remain unresolved, including whether the promissory note secured payment for aircraft parts purchased by and delivered to Bailen Automocion, S.A. See Suris v. Tropical Fed. Sav. & Loan Ass’n, 515 So. 2d 1049 (Fla. 3d DCA 1987); Home Health Serv. of Sarasota, Inc. v. McQuay-Garrett, Sullivan & Co., 462 So. 2d 605 (Fla. 2d DCA 1985); see also Gulotty v. Estate of Wilkie, 532 So. 2d 1335 (Fla. 3d DCA 1988); Robert C. Malt & Co. v. Kelly Tractor Co., 518 So…
Authorities Cited (11 total)
- Forte v. Tripp & Skrip, 339 So. 2d 698 (Fla. 3d DCA 1976)
- Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971)
- Coral Ridge Props., Inc. v. Playa DEL MAR Ass'n, Inc., 505 So. 2d 414 (Fla. 1987)
- Jackson v. State, 497 So. 2d 962 (Fla. 1st DCA 1986)
- Home Health Servs. OF Sarasota, Inc. v. McQUAY-Garrett, 462 So. 2d 605 (Fla. 2d DCA 1985)
- Lipton v. Se. First Nat'l Bank of Miami, 343 So. 2d 927 (Fla. 3d DCA 1977)
- SAC Constr. Co., Inc. v. Eagle Nat'l Bank OF Miami, 449 So. 2d 301 (Fla. 3d DCA 1984)
- Wyman v. Robbins, 513 So. 2d 230 (Fla. 1st DCA 1987)
- Marquez v. Ribero, 479 So. 2d 207 (Fla. 3d DCA 1985)
- Syncom Corp. v. Bank Leumi Tr. Co. OF NEW York, 479 So. 2d 207 (Fla. 3d DCA 1985)