ACCURATE METAL FINISHING CORP., A FLORIDA CORPORATION, AND BEN H. LYNN, APPELLANTS,
v.
JACK CARMEL, APPELLEE
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Appellants who endorsed promissory notes appealed summary judgment entered against them for principal, interest, and attorney's fees. The court affirmed, holding that affirmative defenses must be pleaded in the complaint and cannot be introduced solely through affidavits in opposition to a summary judgment motion.
The court affirmed the summary judgment, holding that affirmative defenses must be pleaded in the complaint and cannot be properly asserted for the first time in affidavits opposing a summary judgment motion. Defendants' assertions in the affidavit regarding the order of endorsements were not properly before the trial court because such a defense was not asserted in the pleadings.
[1] Affirmative defenses must be pleaded and cannot be raised for the first time in affidavits opposing a motion for summary judgment.
[2] A summary judgment is appropriate when there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law.
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Join FLexlaw to unlock all legal intelligence“The assertions in the defendant-Lynn's affidavit relating to the order in which the endorsements were made were not properly before the trial court for consideration, inasmuch as, no such defense was asserted in the pleadings.”
Establishes that affirmative defenses must be pleaded formally and cannot be introduced via affidavits for the first time
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Join FLexlaw to unlock all legal intelligenceAccurate Metal Finishing Corp. and its president Ben H. Lynn endorsed promissory notes payable to Central Bank & Trust Company. Plaintiff Jack Carmel …
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Appellants were defendants in an action brought by plaintiff-appellee to recover *557principal, interest and attorney fees which the plaintiff was compelled to pay by reason of his endorsement of promissory notes made by defendant-Accurate Metal Finishing Corp., by its president, defendant-Lynn, payable to Central Bank & Trust Company. Lynn was also an endorser on the notes. His name appeared on the back of the notes above the plaintiff’s endorsement.
The defendants’ answer denied the allegations of the complaint and affirmatively asserted lack of consideration. The plaintiff moved for a summary judgment in his favor pursuant to Rule 1.510 Florida Rules of Civil Procedure, 31 F.S.A. on the ground that there were no genuine issues as to any material fact and that plaintiff was entitled to a judgment as a matter of law. The plaintiff supported the motion by affidavits. Defendants filed opposing affidavits which they rely upon as being sufficient to deprive the plaintiff of a summary judgment. The matters in the affidavit Lynn so heavily relied on as a defense to the notes were to the effect that the notes when given to the defendant-Lynn for his signature already bore the endorsement of the plaintiff, and Lynn signed his name above that of the plaintiff on a line under which his name had been typed. See §§ 673.414, 673.415 and 673.208, Fla.Stat.1969, F.S.A. (Uniform Commercial Code).
The trial judge, after considering the pleadings, exhibits and affidavits, entered a summary final judgment in favor of the plaintiff in the amount of $35,851.97 which included principal, interest and attorney’s fees. Rehearing was denied defendants and they appealed.
The point on appeal is whether or not the trial court erred in entering summary final judgment for the plaintiff.
The defendants contend that there were triable issues of fact and therefore, the summary judgment should not have been entered. We can not agree and must affirm.
The assertions in the defendant-Lynn’s affidavit relating to the order in which the endorsements were made were not properly before the trial court for consideration, inasmuch as, no such defense was asserted in the pleadings. Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits. Wingreen Company v. Montgomery Ward & Co., Fla.App.1965, 171 So.2d 408; Turf Express, Inc. v. Palmer, Fla.App.1968, 209 So.2d 461.
We have carefully considered the record, briefs and argument of counsel in the light of the rules governing the granting of the summary judgment and have concluded that no reversible error has been made to appear.
Affirmed.
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Cited By (13 total)
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Cong. Park Off. Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So. 3d 602 (Fla. 4th DCA 2013)…d fraud as a defense in their response to First-Citizens’ motion for summary judgment, such a filing did not discharge their duty to amend their pleadings in compliance with the rules of civil procedure. See Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556, 557 (Fla. 3d DCA 1971) (“Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits.” (citations omitted)); cf. B.B.S. v. R.C.B., 252 So. 2d 837, 839 (Fla. 2d DCA 197…
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Reina v. Gingerale Corp., 472 So. 2d 530 (Fla. 3d DCA 1985)…osition to the motion for summary judgment, he has at no time sought to amend the complaint in this regard. At a summary judgment hearing, the court must only consider those issues made by the pleadings. See Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971); Couchman v. Goodbody & Co., 231 So. 2d 842 (Fla. 4th DCA 1970); Turf Express, Inc. v. Palmer, 209 So. 2d 461 (Fla. 3d DCA 1968). It has long been the Florida rule that whenever fraud is relied upon, allegations relating thereto…
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Fla. Perfections, Inc. v. J & D Fin. Corp., 571 So. 2d 520 (Fla. 3d DCA 1990)…man v. Kingsland Development, Inc., 432 So. 2d 660 (Fla. 5th DCA 1983); Spurrier v. United Bank, 359 So. 2d 908 (Fla. 1st DCA 1978); Sottile v. Gaines Construction Company, 281 So. 2d 558 (Fla. 3d DCA 1973); Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 2d DCA 1971). Affirmed.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Wingreen Co. v. Montgomery Ward & Co., Inc., 171 So. 2d 408 (Fla. 3d DCA 1965)
- Turf Express, Inc. v. Palmer, 209 So. 2d 461 (Fla. 3d DCA 1968)