E. M. HAWKINS, APPELLANT,
v.
JIM AL TOWNSEND, D/B/A MADISON STOCK YARDS, APPELLEE
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In this contract dispute, the trial court granted summary judgment for the plaintiff against the defendant on a claim for payment of cattle purchased through an alleged agent. The appellate court reversed, holding that genuine issues of material fact existed regarding delivery and agency that precluded summary judgment and required a jury trial.
The court held that the summary judgment should be reversed because genuine issues of material fact existed regarding delivery and agency, and therefore the case must proceed to trial before a jury rather than being resolved on summary judgment.
“only in the absence of a genuine issue of a material fact should a summary judgment be employed to end a case without the intervention of a jury”
Establishes the governing standard for summary judgment in Florida, requiring that material factual disputes go to a jury
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Join FLexlaw to unlock all legal intelligenceThe plaintiff sued the defendant for payment of fifty-four head of cattle allegedly purchased through the defendant's agent, Gene E. Hawkins, for $6,0…
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Appellee, plaintiff below, filed his complaint in the Circuit Court, alleging that defendant, through his agent, Gene E. Hawkins, purchased from plaintiff fifty-four head of cattle for $6,070.39, and received delivery of the cattle from plaintiff; that •the said Hawkins, as such agent, delivered to plaintiff his check for the amount of the purchase price of the cattle, which check was dishonored by the bank on which it was drawn. These allegations of the *90complaint were denied by defendant in his answer.
Appellee then, pursuant to Rule 1.36 of the Florida Rules of Civil Procedure, 30 F.S.A., filed a motion for summary judgment, together with supporting affidavits. The trial court granted the motion and entered a summary judgment, holding that there was no genuine issue as to any material fact and that the plaintiff was entitled to a summary judgment as a matter of law.
At the hearing before the trial court on the motion the defendant presented opposing affidavits, in one of which the defendant swore that he had not bought nor received any cattle from the plaintiff; that he never authorized any agent to purchase any cattle from plaintiff; that Gene E. Hawkins at no time purchased any cattle from plaintiff as the agent of defendant.
In another affidavit before the trial court, the affiant, a livestock market operator, stated that the cattle in question were delivered to his market in Gainesville, Florida, and not to the defendant’s packing plant at East Palatka.
Rule 1.36 of the Florida Rules of Civil Procedure provides for the entry of a summary judgment or decree in favor of the moving party “if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.”
In the instant case delivery and agency were certainly material facts, and the affidavits mentioned showed there was a genuine issue as to these material facts.
It is established in Florida, following the quoted rule, that only in the absence of a genuine issue of a material fact should a summary judgment be employed to end a case without the intervention of a jury. See Wilson v. Bachrach, Fla., 65 So.2d 546; Yost v. Miami Transit Co., Fla., 66 So.2d 214; Weisberg v. Peri, Fla., 73 So. 2d 56, and Fouts v. Household Finance Corp., Fla., 75 So.2d 772.
We therefore hold that the summary judgment should be reversed and that the cause should proceed to trial.
Reversed.
STURGIS, C. J., and WIGGINTON, J., concur.
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Bev. Canners, Inc. v. E. D. Green Corp. & Ingersoll-Rand Co., 291 So. 2d 193 (Fla. 1974)…“In addition, a search of the record reveals that defendant’s opposing affidavit was not based upon personal knowledge as required by RCP 1.510(3), 31 F.S.A.” The petitioner contends the District Court decision conflicts with Hawkins v. Townsend, 100 So. 2d 89 (Fla.App.1958); United Bonding Insurance Co. v. Dura-Stress, Inc., 243 So. 2d 244 (Fla.App.1971). Research discloses United Bonding was also an appeal from a summary judgment and concerned a breach of a construction subcontract. The corporation mov…
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Palafrugell Holdings, Inc. v. Marwin S. Cassel, 940 So. 2d 492 (Fla. 3d DCA 2006)…e time the order on appeal was entered. Upon de novo review, we are unable to conclude “that there is no issue of material fact and that the moving party is entitled to judgment as a matter of law.” See Fla. R. Civ. P. 1.510(c); Hawkins v. Townsend, 100 So. 2d 89, 90 (Fla. 1st DCA 1958). For this reason, we reverse and remand the judgment rendered in favor appellees below. Reversed. . We note that there exists in the record a suggestion of death of Marwin Cassel as having occurred on October 2, 1999 follow…
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DeBOLIAC Truck Equip. Co. v. Earl Wallace Ford, Inc., 188 So. 2d 887 (Fla. 4th DCA 1966)…. The facts as to the relationship of the parties constitute a genuine issue of mater-íal fact that makes improper the granting' of summary judgment to either party. Johnson v. Studstill, Fla. 1954, 71 So. 2d 251. Hawkins v. Townsend, Fla.App.1958, 100 So. 2d 89. Accordingly, the cause is reversed with directions that the summary judgment be set aside and that the cause proceed to' trial. WALDEN, J., and RAWLS, JOHN S., Associate Judge, concur.…
Authorities Cited
- Yost v. Miami Transit Co., 66 So. 2d 214 (Fla. 1953)
- Wilson v. Bachrach, 65 So. 2d 546 (Fla. 1953)
- Weisberg v. Perl et ux., 73 So. 2d 56 (Fla. 1954)
- Fouts v. Household Fin. Corp., 75 So. 2d 772 (Fla. 1954)