MARIO VITELLI AND CAROL BARTHOLOMEW, INDIVIDUALLY AND AS TRUSTEES OF THE MARIO VITELLI AND CAROL BARTHOLOMEW REVOCABLE TRUST, UNDER TRUST DATED NOVEMBER 5, 1997

v.

EMIL HAGGER AND CAROLINE HAGGER

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MARIO VITELLI AND CAROL BARTHOLOMEW,

INDIVIDUALLY AND AS TRUSTEES OF THE

MARIO VITELLI AND CAROL BARTHOLOMEW

REVOCABLE TRUST, UNDER TRUST DATED

NOVEMBER⁵, 1997,

Appellants,

v. Case No. 5D18-2159

EMIL HAGGER AND CAROLINE HAGGER,

Appellees.

__________________________________/

Opinion filed April 12, 2019

Appeal from the Circuit Court for Marion County, Lisa D. Herndon, Judge.

Jean Benoit Roth, of Roth Law Firm PL, Jacksonville, for Appellants.

Lawrence C. Callaway, III, of Klein & Klein, LLC, Ocala, for Appellees.

BERGER, J.

Appellants, Mario Vitelli¹ and Carol Bartholomew, individually and as Trustees of the Mario Vitelli and Carol Bartholomew Revocable Trust, Under Trust Dated November

2 § 704.01(2), Fla. Stat. (2017).

3 Dr. Bartholomew was allowed to read into the record the six genuine issues she had filed untimely, but the trial court stated it would not accept the document. Dr. Bartholomew also advised the trial court that she had photographs that would show ruts created by heavy trucks that entered and exited the Haggers' property using a road located on a third party's property. Again, this evidence was not considered.

The burden to present evidence of a genuine issue of material fact does not shift to the opposing party until the moving party has initially shown that there is no genuine issue of material fact. Gay Bros. Constr. Co. v. Fla. Power & Light Co., 427 So. 2d 318, 320 n.1 (Fla. 5th DCA 1983) (citing Landers v. Milton, 370 So. 2d 368 (Fla. 1979)); Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195, 198 (Fla. 5th DCA 2015) (reiterating that moving party must demonstrate nonexistence of genuine issue of material fact before opposing party is required to prove existence of a genuine issue of material fact (citing Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1167 (Fla. 1st DCA 2014))). Conclusory and self-serving testimony will not shift the burden to the opposing party. Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 480 (Fla. 4th DCA 2006) (citing Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995)).

Here, we conclude it was error to grant summary judgment based on the conclusory allegations in the verified complaint. While a verified complaint may be regarded as an affidavit in summary judgment proceedings, Colon, 162 So. 3d at 199, the Haggers' verified complaint was insufficient for summary judgment purposes because it did nothing more than track the language of the statute. It did not articulate the planned use for Parcel A,⁴ did not describe how Parcel A was "hemmed in," nor did it offer evidence in the form of photographs, maps, or surveys to substantiate its claim that the closest practical route between Parcel A and SE 141st Avenue Road was across

4 At oral argument, for the first time, counsel for the Haggers indicated that Parcel A was used as a horse farm.

Although the Haggers assert that Appellants had the burden of bringing forward evidence to support their affirmative defense, "[a] party opposing a motion for summary judgment has no initial obligation to submit affidavits or proof to establish its affirmative defense[]." Colon, 162 So. 3d at 198 (citing Stop & Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784, 786 (Fla. 5th DCA 2003)). The obligation to do so occurs once the movant has properly met its burden of demonstrating the nonexistence of a genuine issue of material fact. Id. Because the Haggers failed to meet their initial burden, Appellants were not compelled to produce anything in opposition.

Based on the foregoing, we reverse the order granting final summary judgment and remand for further proceedings.⁵ REVERSED and REMANDED. EDWARDS and HARRIS, JJ., concur.

5 It was also improper for the trial court to award attorney's fees and costs because the Haggers failed to plead or prove that Appellants acted unreasonably by refusing to allow them access to the right of way across their property. See § 704.04, Fla. Stat. (2017) (providing for award of attorney's fees to either party for the "unreasonable refusal to comply with the provisions of s[ection] 704.01(2)").