ZUR INVESTMENTS, LLC, ET AL.,
v.
ANAT ZUR AUSLANDER
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Zur Investments LLC and individual members appealed a trial court's grant of final summary judgment in favor of Anat Zur Auslander in a dispute over inspection of company books. The appellate court reversed, finding that the trial court improperly granted summary judgment before the defendants had answered or asserted affirmative defenses, failing to apply the heightened burden required at that procedural stage.
The trial court erred in granting final summary judgment before defendants had answered or asserted defenses. When summary judgment is sought before a defendant answers, the movant must demonstrate conclusively and to a certainty that the defendant cannot plead or raise a genuine issue of material fact. Auslander failed to satisfy this heightened burden.
[1] A trial court should not grant summary judgment for a plaintiff before the defendant has answered unless it is clear that no issue of material fact can be presented.
[2] A party moving for summary judgment must demonstrate conclusively and to a certainty from the record that the non-moving party cannot raise a genuine issue of material fa…
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“At this stage, Auslander's "burden to show the absence of any genuine issue of material fact was extremely high."”
Establishes the heightened burden applicable when summary judgment is sought before defendant answers
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Join FLexlaw to unlock all legal intelligenceZUI is a dissolved limited liability company. Anat Zur Auslander filed an action to inspect the books of ZUI against Zur Investments, LLC, Hanna Zur, …
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GORDO, J.
Zur Investments, LLC (“ZUI”), Hanna Zur and Vered Zur Panzer appeal the trial court’s order granting final summary judgment in favor of Anat Zur Auslander in an action to inspect the books of ZUI, a dissolved limited liability company.
The court entered the unelaborated order before Appellants had served an answer to the third amended complaint or asserted any affirmative defenses, and while a motion to dismiss and a motion to enforce settlement agreement were pending before it.
At this stage, Auslander’s “burden to show the absence of any genuine issue of material fact was extremely high.” St. Tropez II, LLC v. Adlerov, 50 So. 3d 40, 41 (Fla. 3d DCA 2010) (quoting W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988)).
“When a trial court has for consideration a plaintiff’s motion for summary judgment before the defendant has answered, the summary judgment should not be granted unless it is clear that an issue of material fact can not be presented.” Beach Higher Power Corp. v. Granados, 717 So. 2d 563, 565 (Fla. 3d DCA 1998) (quoting Olin’s, Inc. v. Avis Rental Car Sys. of Fla., Inc., 105 So. 2d 497, 498 (Fla. 3d DCA 1958)).
“[T]he movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact.” Hodkin v. Ledbetter, 487 So. 2d 1214, 1217 (Fla. 4th DCA 1986)). See Howell v. Ed Bebb, Inc., 35 So. 3d 167, 168 (Fla. 2d DCA 2010).
Based on the record before us, Auslander failed to satisfy this heightened burden of establishing conclusively and to a certainty that Appellants could not plead or otherwise raise a genuine issue of material fact.
We, therefore, vacate the trial court’s final judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fredric J. Hodkin v. Ledbetter, 487 So. 2d 1214 (Fla. 4th DCA 1986)
- W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979 (Fla. 2d DCA 1988)
- J.L.F. v. State, 717 So. 2d 563 (Fla. 5th DCA 1998)
- Howell v. ED Bebb, Inc., 35 So. 3d 167 (Fla. 2d DCA 2010)
- ST. Tropez II v. Adlerov, 50 So. 3d 40 (Fla. 3d DCA 2010)