HAROLD GOLDSTEIN, CO-PARTNER, AND ROBERT J. GOLDSTEIN, CO-PARTNER, T/A BREECE'S FISH AND LOBSTER MARKET, APPELLANTS,
v.
FLORIDA FISHERMEN'S SUPPLY COMPANY, INC., APPELLEE
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The appellants (partners in a fish market) challenged a summary judgment entered against them in a debt action brought by a supplier. The court held that genuine issues of material fact existed regarding whether the goods were actually delivered to the appellants, precluding summary judgment.
Genuine issues of material fact existed that precluded summary judgment. The appellee failed to clearly demonstrate that no genuine issue of fact could be presented, particularly regarding to whom the merchandise was actually delivered and who was responsible for payment.
“In order to justify the entry of the summary judgment before answer filed, it was necessary for the appellee to clearly demonstrate that a genuine issue of fact could not be presented.”
Establishes the legal standard for summary judgment in this jurisdiction
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Join FLexlaw to unlock all legal intelligenceFlorida Fishermen's Supply Company sued the Goldstein partners for goods allegedly bargained and sold to them. The appellants denied the claim and mov…
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This appeal is from a summary judgment rendered for appellee in an action for goods allegedly bargained and sold to appellants, before answer by appellants but also after appellants had moved for summary judgment in their favor.
Appellants contend that there were genuine issues as to material facts which pre-*454eluded the entry of a summary judgment. This contention is well taken.
The appellants, before answer, moved for summary judgment with supporting affidavits. The gist of these affidavits was a denial of the appellee’s claim. The appellee filed opposing affidavits, among which was an affidavit by its manager claiming that the merchandise had been delivered to named parties, other than appellants, at a boat, and that the appellants had some unknown interest in this boat.
In order to justify the entry of the summary judgment before answer filed, it was necessary for the appellee to clearly demonstrate that a genuine issue of fact could not be presented. See Olin’s, Inc. v. Avis Rental Car System of Fla., Inc., Fla. App.1958, 105 So.2d 497. A consideration of the affidavits and pleadings leads to the .inference that there are several possible legitimate defenses sufficient to raise a genuine issue of material fact which the appellants could or may interpose. In any "event, the affidavits, etc., on behalf of the appellee were not so clear as to warrant the conclusion that no genuine issue of ma- ■ terial fact existed. As a matter of fact, the affidavit of the appellee’s manager to the effect that the merchandise was delivered to parties other than the appellants, without -any explanation as to the condition or circumstances of its delivery, raises several legitimate issues which we conceive would preclude the entry of a summary judgment. The record contains affidavits which further support the possible inference that the merchandise was not delivered to the appellants but to other named parties, and, the record contains an affidavit of a party other than the appellants who claims to have purchased the merchandise and further alleges that he alone is solely responsible for the payment of said goods.
Upon the state of the record, we are convinced insufficient basis existed for the entry of the summary judgment and it should be reversed. Accordingly, the summary judgment appealed from is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
PEARSON and CARROLL, CHAS., JJ., concur.
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Settecasi v. Bd. OF Pub. Instruction OF Pinellas Cnty., 156 So. 2d 652 (Fla. 2d DCA 1963)…a certainty that no answer which the defendant might properly serve could present a genuine issue of fact. Olin’s Inc. v. Avis Rental Car System of Florida, Fla.App.1958, 105 So. 2d 497; Goldstein v. Florida Fishermen’s Supply Company, Fla.App.1959, 116 So. 2d 453; Lehew v. Larsen, Fla.App.1960, 124 So. 2d 872, 85 A.L.R.2d 821; and Edgewater Drugs, Inc. v. Jax Drugs, Inc., Fla.App.1962, 138 So. 2d 525. In Lehew v. Larsen and Edgewater Drugs, Inc. v. Jax Drugs, Inc., supra, the foregoing principles of law see…
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Leacy S. Lehew v. Larsen, 124 So. 2d 872 (Fla. 1st DCA 1960)…the record before the trial court contains data or statements indicating the possibility that a material issue may be presented by an answer. Applying that rule, which was reaffirmed in Goldstein v. Florida Fishermen’s Supply Company, Fla.App.1959, 116 So. 2d 453, we think the case on appeal meets the test. Defendant’s affidavit to the effect that plaintiff’s acquisition of the tax deed in question was the product of collusion between the plaintiff and defendant’s co-tenant, her former husband, implies that…
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Coast Cities Coaches, Inc. v. Dade Cnty., 178 So. 2d 703 (Fla. 1965)…is question, the First and Third District Courts of Appeal have had the question before them and have ruled as above stated. See Olin’s, Inc. v. Avis Rental Car System, Fla.App., 105 So. 2d 497; Goldstein v. Florida Fishermen’s Supply Co., Fla.App., 116 So. 2d 453; Lehew v. Larson, Fla.App., 124 So. 2d 872, 85 A.L.R.2d 821; Coast Cities Coaches, Inc. v. Whyte, Fla.App., 130 So. 2d 121. Initially, both the federal rules and the Florida rules specifically required the filing of an answer before a motion for sum…
Authorities Cited
- Olin's Inc. v. AVIS Rental CAR Sys. OF Fla., Inc., 105 So. 2d 497 (Fla. 3d DCA 1958)