DON MANCINO, A/K/A D. A. MANCINO AND CARMEN MANCINO, HIS WIFE, APPELLANTS,
v.
NATIONAL INDUSTRIAL BANK OF MIAMI, A NATIONAL BANKING CORPORATION, F/K/A LINCOLN NATIONAL BANK OF MIAMI, APPELLEE
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A bank sought summary judgment against Don and Carmen Mancino on personal guaranty agreements for an unpaid loan. The court reversed the summary judgment, finding that the bank failed to present sufficient evidence to dispel the affirmative defenses of fraud in inducement and lack of consideration raised by Don Mancino, and noting that Carmen Mancino was never properly served with process.
The summary judgment against both defendants must be reversed. The bank failed to present evidentiary matter sufficient to dispel Don Mancino's pleaded affirmative defenses. The judgment against Carmen Mancino is invalid because she was never served with process. Don Mancino was not bound by rulings in the prior action against the borrower because he was not a party to that action.
[1] A plaintiff moving for summary judgment must present evidentiary matter sufficient to dispel issues raised by a defendant's pleaded affirmative defenses.
[2] A party not served with process and who did not appear in a prior action is not bound by the rulings in that action under res judicata or collateral estoppel.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the burden on a plaintiff moving for summary judgment to show there is no genuine issue as to any material fact (Rule 1.510(c), F.R.C.P.) is not carried when the plaintiff fails to present evidentiary matter sufficient to dispel the issues submitted by a defendant's pleaded affirmative defenses”
Establishes the legal standard for summary judgment and plaintiff's burden when defendant raises affirmative defenses
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Join FLexlaw to unlock all legal intelligenceThe bank filed suit against Don and Carmen Mancino based on separate written guaranty agreements they executed relating to a loan to another party. Do…
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CHARLES CARROLL (Ret.), Associate Judge.
The appellee bank filed an action against the appellants Don Mancino and Carmen Mancino, his wife, on separate written guaranty agreements made by them relating to a loan to another party. This appeal by the defendants is from a summary judgment granted against them for the amount of the unpaid loan, plus certain sums for interest and attorneys’ fees.
The appellee has conceded that the judgment against Carmen Mancino is not valid, because she was not served with process and did not appear in defense of the action.
The defendant Don Mancino filed an answer and counterclaim. The answer set up certain affirmative defenses. The plaintiff filed a motion to strike the affirmative defenses. No hearing was had or ruling made thereon.
The plaintiff moved for summary judgment. In support thereof, in addition to evidentiary matter to support the complaint, there was filed an affidavit of plaintiff’s attorney to which were attached certain pleadings and the judgment in a prior action which had been maintained by the plaintiff against the borrower. They revealed certain affirmative defenses which were pleaded by the borrower in that case, and rejected by the court. On examination thereof we hold, as contended by the appellant Don Mancino, that the evidentiary matter submitted by the plaintiff was insufficient to dispel the issues raised by his affirmative defenses. First, the answer of the guarantor Don Mancino presented some affirmative defenses which were applicable to him as guarantor, relating to averred fraud in the inducement of the guaranty instrument, fraud in the execution thereof and lack of consideration for the guaranty. Second, although Don Mancino was named as a defendant in the prior action, he was not served with process and did not appear therein. Therefore, Don Mancino who was not a party to the prior action would not have been bound by rulings in the prior action, either as res ju-dicata or by estoppel by judgment.
It is well settled that the burden on a plaintiff moving for summary judgment to show there is no genuine issue as to any material fact (Rule 1.510(c), F.R.C.P.) is not carried when the plaintiff fails to present evidentiary matter sufficient to dispel the issues submitted by a defendant’s pleaded affirmative defenses. Emile v. First National Bank of Miami, Fla.App. 1961, 126 So. 2d 305; Harrison v. McCourtney, Fla.App. 1963, 148 So. 2d 53, 56; Underwriters Insurance Company v. Sisung, Fla.App. 1965, 174 So. 2d 461; Pompano Paint Co. v. Pompano Beach Bank and Trust Company, Fla.App. 1968, 208 So. 2d 152, 153; Jenkins v. Graham, Fla.App. 1970, 237 So. 2d 330, 332; City of Hallandale v. State ex rel. Sage Corporation, Fla.App.1974, 298 So. 2d 437,439.
The summary judgment against the appellant-defendant Carmen Mancino is reversed.
The summary judgment against Don Mancino also is reversed and the cause remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bunner v. Fla. Coast Bank OF Coral Springs, N.A., 390 So. 2d 126 (Fla. 4th DCA 1980)…iciency of the defenses. Howdeshell v. First National Bank of Clearwater, 369 So. 2d 432 (Fla.2d DCA 1979); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So. 2d 830 (Fla.3d DCA 1976); Mancino v. National Industrial Bank of Miami, 312 So. 2d 211 (Fla.3d DCA 1975); City of Hallendale v. State ex rel. Sage Corp., 298 So. 2d 437 (Fla.4th DCA 1974). In the case at bar, appellee/bank denied the Bunners’ affirmative defense but thereafter ignored the issue. The motion for summary judgment and aff…
Authorities Cited
- Emile v. First Nat'l Bank OF Miami, 126 So. 2d 305 (Fla. 3d DCA 1961)
- Harrison v. McCOURTNEY, 148 So. 2d 53 (Fla. 2d DCA 1962)
- Pompano Paint Co. v. Pompano Beach Bank & Tr. Co., 208 So. 2d 152 (Fla. 4th DCA 1968)
- Jenkins v. Graham, 237 So. 2d 330 (Fla. 4th DCA 1970)
- Underwriters Ins. Co. v. Sisung, 174 So. 2d 461 (Fla. 3d DCA 1965)
- The City OF Hallandale v. State of Fla. ex rel. Sage Corp., 298 So. 2d 437 (Fla. 4th DCA 1974)