DAVID L. GRAY, APPELLANT,
v.
UNION PLANTERS NATIONAL BANK, APPELLEE
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Gray appealed a summary judgment foreclosure order entered against him by Union Planters National Bank. The court reversed, holding that the bank failed to rebut Gray's affirmative defenses and therefore was not entitled to summary judgment as a matter of law.
Summary judgment was improper because the bank, as the movant, bore the burden of disproving Gray's affirmative defenses and failed to do so. Additionally, Gray's affirmative defenses were timely since they were filed before any default was entered and before the summary judgment hearing.
[1] A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.
[2] Where a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgme…
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“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”
Establishes the fundamental principle that summary judgment is improper when affirmative defenses remain uncontradicted.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavid Gray was the defendant in a foreclosure action brought by Union Planters National Bank. Gray filed affirmative defenses, though late under the r…
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BASKIN, Judge.
We reverse the summary judgment of foreclosure in favor of defendant Union Planters National Bank. “A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.” Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla.1991). The bank’s motion for summary judgment and supporting documents did not address or overcome the issues of fact created by Gray’s affirmative defenses. “[WJhere a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.” Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So. 2d 905, 906 (Fla. 3d DCA 1976).
Moreover, although Gray filed his affirmative defenses late, Fla.R.Civ.P. 1.140(a)(1), he, a pleader, has the right to respond anytime before the entry of a default. Crowder v. Oroweat Foods Co., 447 So. 2d 1038 (Fla. 2d DCA 1984); Lake Towers, Inc. v. Axelrod, 216 So. 2d 86 (Fla. 4th DCA 1968); Fla. R.Civ.P. 1.500(c) (“A party may plead or otherwise defend at any time before default is entered.”). Gray’s affirmative defenses were filed prior to the hearing on summary judgment, no default had been sought or entered in the case, and the affirmative defenses were not struck until after the court granted the motion for summary judgment.
Consequently, the court should have considered the affirmative defenses in ruling on the motion for summary judgment. As the mov-ant for summary judgment, the Bank had the burden of disproving Gray’s affirmative defenses. Because the Bank failed to meet this burden, summary judgment in its favor was error. We therefore reverse the summary judgment of foreclosure and remand for further proceedings.
Reversed and remanded.
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Stop & Shoppe Mart, Inc. v. Zahra Mehdi, 854 So. 2d 784 (Fla. 5th DCA 2003)…v. Fed. Trust Bank, F.S.B., 727 So. 2d 296 (Fla. 5th DCA 1999); Hosp. Correspondence Corp. v. McRae, 682 So. 2d 1177 (Fla. 5th DCA 1996); Fla. Dep’t. of Agric, v. Go Bungee, Inc., 678 So. 2d 920 (Fla. 5th DCA 1996); Gray v. Union Planters Nat. Bank, 654 So. 2d 1288 (Fla. 3d DCA 1995); Elkins v. Barbella, 603 So. 2d 726 (Fla. 4th DCA 1992). Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address…
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Calarese v. Weissfisch, 87 So. 3d 1225 (Fla. 3d DCA 2012)…the burden to conclusively refute, by disproving or establishing the legal insufficiency of, affirmative defenses raised by the opposing party. See O’Neal v. Brady, 476 So. 2d 294, 294 (Fla. 3d DCA 1985); see also Gray v. Union Planters Nat’l Bank, 654 So. 2d 1288, 1288 (Fla. 3d DCA 1995) (“Where a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.” (quoting Johnson & Kirby, Inc. v. Citizens Nat’…
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Adiel Gorel & Flca Tropical Holdings, LLC v. The Bank OF NEW York Mellon, 151 So. 3d 1288 (Fla. 5th DCA 2014)…also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 733 (Fla.1991) (“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat'l Bank, 654 So. 2d 1288, 1288 (Fla. 3d DCA 1995) (“[Wjhere a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.’ ” (quoting Johnson & Kirby, Inc. v. Citizens…
Authorities Cited
- State v. Vamper, 579 So. 2d 730 (Fla. 1991)
- Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730 (Fla. 1991)
- Johnson & Kirby, Inc. v. Citizens Nat'l Bank OF Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976)
- Lake Towers, Inc. v. Axelrod, 216 So. 2d 86 (Fla. 4th DCA 1968)
- RAY v. Kehoe, 447 So. 2d 1038 (Fla. 4th DCA 1984)
- Crowder v. Oroweat Foods Co., 447 So. 2d 1038 (Fla. 2d DCA 1984)