JANE DIXON TOPPING, AS EXECUTRIX OF THE ESTATE OF JOHN REID TOPPING, APPELLANT,
v.
HOTEL GEORGE V, APPELLEE
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The court reversed a summary judgment for a hotel on an account stated against a deceased person's estate because the hotel's evidence consisted entirely of inadmissible hearsay. The court held that an attorney's affidavit based on secondhand knowledge of business records and alleged agreements does not satisfy the requirements for supporting a summary judgment.
The court held that the affidavit and interrogatory answers were insufficient to support summary judgment because they constituted incompetent hearsay evidence that did not comply with Rule 1.510(e), Florida Rules of Civil Procedure, which requires affidavits to be made on personal knowledge and to set forth facts that would be admissible in evidence.
[1] An attorney's affidavit based on hearsay is incompetent to support a summary judgment.
[2] Supporting affidavits for summary judgment must be made on personal knowledge and set forth facts admissible in evidence.
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Join FLexlaw to unlock all legal intelligence“Supporting and opposing affidavits shall he made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
Establishes the mandatory requirement that affidavits supporting summary judgment must be based on personal knowledge and admissible facts
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Join FLexlaw to unlock all legal intelligenceJohn Reid Topping's estate was sued by Hotel George V on an account stated. The hotel supported its summary judgment motion with an affidavit from its…
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Summary judgment was entered upon an account stated in favor of appellee-hotel and against the estate of John Reid Topping. The sole evidence upon which said summary judgment was entered were answers to interrogatories propounded to ap-pellee by appellant and an affidavit of ap-pellee’s attorney in New York in which he states that he is familiar with the books and records of appellee, that said records reflect an account with appellant’s decedent, and that he, the affiant, understands there was an agreement between appellee’s agents or employees and the decedent that the latter owed such account.
As to the affidavit, it clearly appears that it is pure hearsay. The affiant is not the agent or employee of appellee with personal knowledge of the facts nor is he the person in whose charge, custody and control appellee’s business records are entrusted within the contemplation of the “shop book” rule. As noted, he is merely appel-lee’s attorney seeking collection of the alleged debt. Moreover, it appears that he is not the agent or employee of appellee with whom appellant’s decedent had any agreement or understanding. As such hearsay evidence it is incompetent to support a summary judgment in the light of Rule 1.-510(e), R.C.P., 31 F.S.A., which provides as follows:
“Supporting and opposing affidavits shall he made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . ” . (Italics supplied.)
Concerning the answers to the interrogatories, they contribute nothing in the way of evidence otherwise supporting the judgment in favor of appellee. First of all, the interrogatories were propounded following receipt of the aforesaid affidavit of appel-lee’s attorney. They relate to the identity of the affiant, his position with appellee and the hearsay matters testified to by such affiant. Finally, and compounding error, the answers to such interrogatories were again sworn to only by the aforesaid attorney and not by other appropriate agents or employees of appellee with knowledge of the facts. In sum, the answers to the interrogatories merely affirmatively establish the hearsay nature of the affidavit referred to above and they relate to no other matters or establish no other facts upon which summary judgment might otherwise be predicated.
Accordingly, summary judgment entered herein is reversed and the cause is remanded for further proceedings consistent with *390the controlling provisions of Rule 1.510, R.C.P., or, in the alternative, for the entry of an order denying summary judgment.
Reversed.
PIERCE, C. J., and HOBSON, J., concur.
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Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992)…pies of the public records were presented to satisfy the hearsay exceptions of sections 90.803(8) and (14), Florida Statutes (1989), his affidavit was based upon hearsay and was incompetent to support summary judgment. See Topping v. Hotel George V, 268 So. 2d 388 (Fla. 2d DCA 1972) (attorney’s affidavit that he was familiar with his client’s records and that the records reflected certain information constituted hearsay and could not support summary judgment); see also Crosby v. Paxson Elec. Co., 534 So. 2d 7…
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Lloyds Underwriters AT London v. Keystone Equip. Fin. Corp., 25 So. 3d 89 (Fla. 4th DCA 2009)…n-Argote informed the insured of the garaging warranty, and their hearsay statements on the matter would not be admissible in evidence and could not be relied upon to create an issue of fact and avoid summary judgment. See Topping v. Hotel George V, 268 So. 2d 388, 389 (Fla. 2d DCA 1972) (recognizing [*95] interrogatories sworn to only by counsel, not the appropriate agents or employees with knowledge of the facts, could not support entry of summary judgment); see also Fla. R. Civ. P. 1.340(b) (providing that…
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Lionita Coleman v. Grandma's Place, Inc., 63 So. 3d 929 (Fla. 4th DCA 2011)…George V out of the Second District Court of Appeal supports Grandma Place’s argument by stating that employees have personal knowledge of the records and files at a business and, as such, are competent to testify as to matters related to the files. 268 So. 2d 388, 389 (Fla. 2d DCA 1972). Further, Grandma’s Place responded to Coleman’s reliance upon Zoda and provided that Alvarez’s affidavit was distinguishable because Alvarez supplied information about which Coleman had already testified. Grandma’s Place arg…
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