JOSE TACHER, APPELLANT,
v.
HELM BANK, APPELLEE
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In this mortgage foreclosure case, Helm Bank sued Jose Tacher for nonpayment and moved for summary judgment. The trial court granted summary judgment, and Tacher appealed, arguing his affirmative defenses were not conclusively refuted. The appellate court affirmed, finding Tacher failed to present specific arguments or material factual disputes to overcome the bank's evidence.
The appellate court affirmed the summary judgment, holding that the appellant failed to carry his burden of demonstrating reversible error by presenting specific arguments or material factual disputes, and that the bank's affidavit disproved the affirmative defenses of payment, tender, and accord and satisfaction.
[1] A party moving for summary judgment must demonstrate the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law.
[2] A party opposing summary judgment must present specific facts demonstrating a genuine issue of material fact for trial.
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Join FLexlaw to unlock all legal intelligence“It is not the responsibility of an appellate court to make an appellant's arguments for him, 'to sift through the pleadings and affidavits to determine whether there are material issues of fact.'”
Establishes that the appellant bears the burden of presenting specific arguments and identifying factual disputes on appeal.
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Join FLexlaw to unlock all legal intelligenceHelm Bank filed a mortgage foreclosure action against Jose Tacher, alleging he ceased making payments after June 2008. Tacher asserted 19 affirmative …
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Helm Bank sued to foreclose a mortgage contending that appellant Jose Tacher stopped making payments after June, 2008. Tacher filed a 19 paragraph laundry list of affirmative defenses; some are legally insufficient on their face and others state general legal conclusions without any facts. The bank moved for summary judgment and its motion was accompanied by an affidavit. It also filed the original of the note, showing that it was the payee when the loan was made. Tacher filed no counter affidavit. The circuit court entered a summary final judgment. Tacher filed a one-and-one-half page motion for rehearing contending only that each of his affirmative defenses had not been “conclusively refuted on the record.” The circuit court denied the motion.
The legal argument in Tacher’s short brief does nothing more than generally state that affirmative defenses were not refuted and that genuine issues of material *1240fact remain. Plainly, the bank’s affidavit disproves the affirmative defenses of payment, tender, and accord and satisfaction. On its face, the note is not unconscionable. The brief does not specifically discuss a single affirmative defense, nor does it describe what issues of fact need to be tried. It is not the responsibility of an appellate court to make an appellant’s arguments for him, “to sift through the pleadings and affidavits to determine whether there are material issues of fact.” E & I, Inc. v. Excavators, Inc., 697 So.2d 545, 547 (Fla. 4th DCA 1997). Tacher has not carried his “burden of making ‘any reversible error clearly, definitely, and fully appear.’ ” Id. (quoting Strate v. Strate, 328 So.2d 29, 30 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976)).
Affirmed.
GROSS, C.J., MAY and DAMOORGIAN, JJ., concur.
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strate v. Strate, 328 So. 2d 29 (Fla. 3d DCA 1976)
- Widmer v. State, 697 So. 2d 545 (Fla. 1st DCA 1997)