LENHAL REALTY, INC. AND ROSE LABARCA, APPELLANTS,
v.
TRANSAMERICA COMMERCIAL FINANCE CORPORATION, APPELLEE

Fla. 4th DCA | 1993-03-03
No. 92-3127
STONE and FARMER, JJ., concur.
615 So. 2d 207 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 27 cases

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Holding

The court held that the appellee failed to meet its burden of proof for summary judgment regarding the guarantor's liability, as the supporting affidavit lacked personal knowledge of the signature's authenticity. The court also reversed the summary judgment against the corporate lessee due to a vacated default.


Headnotes

[1] A default entered for failure to plead precludes a party from contesting liability.

[2] A summary judgment may be premature if the non-moving party was prevented by an existing order from discovery of information that might have been useful in opposing the m…

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Facts & Procedural History

Lenhal Realty leased equipment and defaulted; Rose LaBarca guaranteed the lease. Transamerica sued for payments, obtaining a default against Lenhal an…

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Opinion of the Court
HERSEY, Judge.

HERSEY, Judge.

Lenhal Realty, Inc., appeals from a summary judgment which found the corporation liable for failure to make payments under an equipment lease. Rose LaBarca also appeals from that aspect of the summary judgment which holds her liable as a guarantor of the corporation’s perfor- manee. The issue of damages was not determined by the summary judgment.

Lenhal Realty, Inc., leased certain equipment from Borg Warner Leasing, a division of Borg Warner Acceptance Corporation, for a five-year term. Rose LaBarca’s name appears as a guarantor on the lease. Transamerica Commercial Finance Corporation succeeded to the interests of the original lessor, Borg Warner Leasing. Lenhal Realty, Inc., sold the business and assigned the lease to Florida Eastern Development Company, Inc. Florida Eastern made only three or four payments on the lease and then defaulted.

Transamerica subsequently filed suit to recover rent against Lenhal, LaBarca and other defendants. A default was entered against Lenhal, although in a separate appeal that default was vacated and the matter returned to the trial court for further proceedings. See Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 611 So. 2d 79 (Fla. 4th DCA 1992).

As to Lenhal, at all times pertinent to this court’s inquiry into the correctness of the summary judgment Lenhal was precluded by the default from asserting any defensive matter going to the issue of liability. See Harless v. Kuhn, 403 So. 2d 423, 425 (Fla.1981) (a default entered for failure to plead precludes a party from contesting liability); see generally, Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla.1982). By analogy, Scherr v. Andrews, 497 So. 2d 970 (Fla. 3d DCA 1986), is instructive on this issue. There, entry of a summary judgment was held to be premature because the non-moving party had been prevented by an existing protective order from discovery of information that might have been useful in opposing a motion for summary judgment. Here, appellant Lenhal may have been prevented by the existing default from raising its defenses against liability. Because we have recently vacated that default, we now reverse the order on motion for summary judgment against Lenhal and remand to permit Len-hal to assert any defenses it may have, and then to permit the trial court to reconsider the motion for summary judgment in light of those defenses, if any.

The name of Rose LaBarca appears as a guarantor of the leasing arrangement. The sole issue on liability is whether that signature is a forgery. Despite argument by appellee Transamerica to the contrary, we find that appellants never conceded the authenticity of LaBarca’s signature. The second issue, then, is whether Trans-america, as the moving party, met the burden of proof required for entry of summary judgment.

Appellants correctly cite case law holding that the burden is initially on the movant for summary judgment to demonstrate the nonexistence of any question of material fact, and only when the movant has tendered competent evidence in support of its motion does the burden shift and fall on the other party to come forward with opposing evidence to show that a question of material fact exists. See, e.g., Landers v. Milton, 370 So. 2d 368, 370 (Fla.1979); Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla.1966). Moreover, the movant’s proof of the nonexistence of a genuine issue of fact must be conclusive, such that all reasonable inferences which may be drawn in favor of the opposing party are overcome. Holl, 191 So. 2d at 43.

In support of the assertion that Rose LaBarca executed the guaranty, Transamerica offered the affidavit of Jeff Hatch, Transamerica’s collection manager. In the affidavit, Hatch, among other assertions, said that based on either his own knowledge or his knowledge based on business records regularly maintained by Transamerica in the ordinary course of business or from information received from a person with knowledge of the pertinent events, Rose LaBarca had executed the guaranty as an inducement to the predecessor lessor to enter into the lease. However, at deposition Hatch admitted that he had no personal knowledge that Rose La-Barca executed the guaranty, and had not spoken with any witnesses to the purported execution. He did not know who, if anyone, at Transamerica could testify as to the authenticity of LaBarca’s signature. Appellants argue that, under these circumstances, the Hatch affidavit is insufficient to support summary judgment. We agree. See, e.g., Montejo Investments, N. V v. Green Companies, Inc. of Florida, 471 So. 2d 158, 159 (Fla. 3d DCA 1985) (Pursuant to Florida Rule of Civil Procedure 1.510(e), an affidavit in support of a motion for summary judgment is defective if it fails to be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify as to the matters stated in the affidavit).

Accordingly, we hold that appellee failed to meet the heavy burden of proof required for entry of summary judgment. Therefore, we reverse and remand for further appropriate proceedings.

REVERSED AND REMANDED.

STONE and FARMER, JJ., concur.


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Citator

Cited By (14 total)

  • Knight Energy Servs., Inc. v. Amoco OIL Co., 660 So. 2d 786 (Fla. 4th DCA 1995)
    …e absence of any genuine issue of material fact and obligates the trial court to draw every reasonable inference in favor of the non-moving party. Moore v. Morris, 475 So. 2d 666 (Fla.1985); Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 615 So. 2d 207 (Fla. 4th DCA 1993). Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment. Cufferi…
  • Craven v. Trg-Boynton Beach, Ltd., 925 So. 2d 476 (Fla. 4th DCA 2006)
    …burden is initially on the movant. Only where the movant tenders competent evidence in support of his motion does the burden shift to the other party to come forward with opposing evidence. Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 615 So. 2d 207 (Fla. 4th DCA 1993). Plaintiffs alleged that TRG should be required to build the retail and office building as proposed in the original site plan because any change would adversely affect the ingress, egress, and visibility of their business or pla…
  • …over, movant’s proof of the nonexistence of a genuine issue of fact must be conclusive, such that all reasonable inferences which may be drawn in favor of the opposing party are overcome. Lenhal Realty, Inc. v. Transamerica Commercial Finance Corp., 615 So. 2d 207, 208 (Fla. 4th DCA1993) (citing Landers v. Milton, 370 So. 2d 368, 370 (Fla.1979); Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla.1966)). In the present case, the only evidence presented in support of appellee’s motion for summary judgment was the affid…

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