OSVALDO ROMERO, APPELLANT,
v.
ALL CLAIMS INSURANCE REPAIRS, INC., APPELLEE
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Osvaldo Romero contracted with All Claims Insurance Repairs for hurricane damage repairs. All Claims sought summary judgment on its lien claim after Romero failed to appear at a hearing, and the trial court granted it, dismissing Romero's counterclaim for breach of contract. The appellate court reversed, holding that Romero's deposition testimony and interrogatory responses created genuine issues of material fact precluding summary judgment.
The appellate court reversed the summary judgment, holding that Romero's deposition testimony and answers to interrogatories, which specifically refuted All Claims' entitlement to the funds sought, created genuine issues of material fact that precluded summary judgment as a matter of law.
[1] Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file conclusively show that there is no genuine issue…
[2] The burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.
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Join FLexlaw to unlock all legal intelligence“summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”
Establishes the legal standard for summary judgment in Florida
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Join FLexlaw to unlock all legal intelligenceAll Claims contracted with Romero to provide contracting services and materials for hurricane damage repairs. Romero claimed he paid $40,000 with a $1…
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PER CURIAM.
All Claims Insurance Repairs, Inc.(All Claims), contracted with Osvaldo Romero to provide contracting services, materials and supplies in connection with hurricane damage to Romero’s home. Romero maintained that he had paid the company $40,000, leaving a balance of $16,056.08 due on completion. All Claims argued that it was not paid money due, and filed a claim of lien. Romero counterclaimed for breach of contract. In his subsequent responses to interrogatories and deposition testimony, Romero maintained that All Claims did a bad job, did not get necessary permits, and did not finish the job. Notwithstanding these representations, Ah Claims moved for summary judgment, which was granted one year later, after a hearing for which there is no transcript, and at which Romero and his counsel did not appear. Romero’s counterclaim was dismissed.
All Claims argues that Romero had a year to respond and failed to do so, and furthermore, that without a transcript of the hearing resulting in the order under review, we are obligated to affirm the trial court’s decision. Romero contends that his deposition and answers to interrogatories demonstrate disputed issues of material fact which precluded summary judgment. We agree with homeowner Romero.
As stated in Albelo v. Southern Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996):
The principles which govern the use of summary judgment are well settled. First, summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Second, the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact. Third, the trial court must draw every possible inference in favor of the party against whom summary judgment is sought. Moore v. Morris, 475 So. 2d 666 (Fla.1985). Fourth, if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment cannot be granted. McDonald v. Florida Dept. of Transp., 655 So. 2d 1164 (Fla. 4th DCA 1995).
As Albelo observes, Florida Rule of Civil Procedure 1.510 provides in pertinent part, that summary judgment will be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact_’’(Emphasis added.) In this case, faced with the homeowner’s answers to interrogatories and deposition testimony specifically refuting All Claims entitlement to the funds sought, the trial judge erred in granting the company final summary judgment. Accordingly, the order under review is reversed, with instructions to reinstate defendant’s counterclaim, and the cause is remanded for further proceedings.
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Seal Prods. v. Mansfield, 705 So. 2d 973 (Fla. 3d DCA 1998)…udgment, the appellant must bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion. See Romero v. All Claims Insurance Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997). Those are the portions of the record essential to a determination whether summary judgment was properly entered. However, the hearing on the motion for summary judgment consists of the legal argument of counsel, not the taki…
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Nard, Inc. v. DeVITO Contracting & Supply, Inc., 769 So. 2d 1138 (Fla. 2d DCA 2000)…precludes the entry of final summary judgment. See Quest Air South, Inc. v. Memphis Group, Inc., 733 So. 2d 1109 (Fla. 4th DCA 1999); Cox v. CSX Intermodal, Inc., 732 So. 2d 1092 (Fla.App. 1st DCA 1999); Romero v. All Claims Insurance Repairs, Inc., 698 So. 2d 605 (Fla. 3d DCA 1997); Gardner v. Sabal Point Properties, Inc., 616 So. 2d 1111 (Fla. 5th DCA 1993).3 In Metropolitan Dade County v. Department of Health and Rehabilitative Services, 683 So. 2d 188 (Fla. 3d DCA 1996), the Third District reminded the t…
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Ari Shahar and Daphna Shahar v. Green Tree Servicing LLC, 125 So. 3d 251 (Fla. 4th DCA 2013)…ent, the appellant must [merely] bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion. See Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997). Those are the portions of the record essential to a determination whether summary judgment was properly entered. However, the hearing on the motion for summary judgment consists of the legal argument of counsel, not the taki…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Albelo v. S. Bell k/n/a Bell S. Telecomms., Inc., 682 So. 2d 1126 (Fla. 4th DCA 1996)
- McDONALD v. Fla. Dep't OF Transp., 655 So. 2d 1164 (Fla. 4th DCA 1995)