C. PATRICK O'CONNOR, APPELLANT,
v.
MEADE MARSTON AND MATRIX REALTY, ETC., ET AL., APPELLEES
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The court reversed a summary judgment against the appellant because the record lacked a transcript of testimony allegedly refuting the appellant's affidavit, and the affidavit itself raised genuine issues of material fact that precluded summary judgment.
Summary judgment against appellant was improper because his affidavit raised genuine issues of material fact and the appellee failed to provide a transcript of testimony allegedly refuting it.
[1] Summary judgment is improper when the nonmoving party's affidavit raises genuine issues of material fact and the moving party fails to provide a transcript of testimony a…
Previewing 1 of 1 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“summary orders and judgments are not favored and the moving parties must refute, disprove or avoid material evidence demonstrating a genuine issue of material fact”
The court explained the standard for summary judgment, emphasizing that such judgments are disfavored and require the moving party to affirmatively address material evidence of disputed facts.
Appellant O'Connor appealed from a non-final order determining liability against him and a judgment thereon. The appellee claimed that appellant's tes…
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DAUKSCH, Judge.
This is an appeal from a non-final order determining liability against appellants, and a judgment thereon. Fla. R.App. P. 9.130(a)(3)(e)(iv).
We have no transcript of the testimony which appellee relies upon to refute the affidavit of appellant in opposition to the summary judgment. That is, although appel-lee says appellant’s testimony at a hearing, or hearings, refutes his affidavit, we cannot know this because no transcript is available. While it is true it is up to appellant to demonstrate the court erred in its orders and judgments and, generally speaking, they are presumed correct, it is also well established that summary orders and judgments are not favored and the moving parties must refute, disprove or avoid material evidence demonstrating a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla.1979); Florida Dep’t of Agric. v. Co Bungee, Inc., 678 So. 2d 920 (Fla. 5th DCA 1996); Publix Supermarkets, Inc. v. Austin, 658 So. 2d 1064 (Fla. 5th DCA), rev. den., 666 So. 2d 146 (Fla.1995).
Because the affidavit of appellant raises genuine issues of material fact it was error to grant a summary judgment as to liability against him.
The order is quashed, the judgment reversed and this cause remanded for further proceedings.
ORDER QUASHED; REMANDED.
GRIFFIN, C.J., and ANTOON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- Publix Supermarkets, Inc. v. Austin, 658 So. 2d 1064 (Fla. 5th DCA 1995)
- Fla. Dep't OF Agric. v. GO Bungee, Inc., 678 So. 2d 920 (Fla. 5th DCA 1996)