STEVEN A. SPEAR AND JOSEPHINE SPEAR, HIS WIFE, APPELLANTS,
v.
MARK J. MARTIN ET AL., APPELLEES
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Spear v. Martin involves a property dispute where plaintiffs sued to recover possession of land allegedly unlawfully used by defendants for a driveway. The appellate court affirmed summary judgment dismissing the adverse possession defense but reversed as to other issues, finding material disputes of fact remained.
Summary judgment was properly granted as to the adverse possession defense based on defendants' interrogatory answers, but erroneously granted as to the remaining issues. Material questions of fact exist regarding easement by prescription, statute of limitations/laches, and damages that preclude summary disposition.
[1] Summary judgment is inappropriate when disputed questions of fact remain regarding the issues drawn by the pleadings.
[2] A party moving for summary judgment bears the burden to conclusively refute affirmative defenses raised by the opposing party.
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Join FLexlaw to unlock all legal intelligence“The party moving for summary judgment has the burden "to conclusively refute" affirmative defenses raised by the other party.”
Establishes the burden of proof standard for summary judgment when affirmative defenses are raised
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued defendants in three counts alleging defendants constructed and used a driveway on plaintiffs' land without authorization, constituting…
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PER CURIAM.
This is an appeal from an interlocutory order partially granting plaintiffs’ motion for summary judgment. We affirm in part and reverse in part.
Plaintiffs sued defendants in a three count complaint, based on the allegation that defendants constructed and used a driveway upon plaintiffs’ land. Count I was an action to recover possession of real property unlawfully detained by defendants. The second count alleged that defendants had trespassed on the plaintiffs’ land and used it without any right or authority. Count III alleged that defendants had taken possession of the plaintiffs’ land and held it without lawful right or title “against the lawful demands for possession by the plaintiffs.”
Plaintiffs demanded damages, exemplary damages and possession of the land.
The defendants denied the allegations and filed affirmative defenses. They affirmatively alleged they had acquired an easement by prescription; that they had acquired the property by adverse possession; and that the plaintiffs’ claim was barred by the Statute of Limitations and laches. The defendants prayed that title to the property be quieted in their names.
Defendants’ motion for summary judgment was denied.
Plaintiffs moved for summary judgment. The trial court entered the appealed order finding for plaintiffs on all accounts except for the issue of intent and damages made by plaintiffs’ complaint.
We have examined the record and agree that the defendants’ affirmative defense of adverse possession was correctly laid to rest, based on defendants’ answers to interrogatories. Thus, the appealed order is affirmed to this extent. However, we feel upon further examination that there clearly remain disputed questions of fact which ban summary disposition as to the other issues drawn by the pleadings. F.R.C.P. 1.510. Simply because both sides move for summary judgment does not mean the court is required to grant one of the motions. Central Investments, Inc. v. Old Southern Golf Utility Corp., 197 So. 2d 17 (4th DCA Fla. 1967). The party moving for summary judgment has the burden “to conclusively refute” affirmative defenses raised by the other party. Jenkins v. Graham, 237 So. 2d 330 (4th DCA Fla. 1970). Thus, except for the issue of adverse possession the appealed order erroneously entered summary judgment.
The cause is remanded for further proceedings consistent herewith. AFFIRMED IN PART; REVERSED IN PART and remanded for further proceedings.
WALDEN, C. J., arid CROSS and OWEN, JJ., concur.
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Pandol Bros., Inc. v. NCNB Nat'l Bank OF Fla., 450 So. 2d 592 (Fla. 4th DCA 1984)…h 9 of the answer and counterclaim of Pandol Brothers by way of affirmative defense. It is well established that summary final judgment is appropriate only where each affirmative defense has been conclusively refuted on the record. Spear v. Martin, 330 So. 2d 543 (Fla. 4th DCA 1976). It is undisputed that NCNB failed to meet its midnight deadline in notifying Pandol Brothers of dishonor of the checks. The remaining factual issue is whether the period of time between NCNB’s learning of the dishonor and notifi…
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Daniel Laurent, Inc. v. Coral Television Corp., 431 So. 2d 1047 (Fla. 3d DCA 1983)…ch issues without a trial. Shaffran v. Holness, 93 So. 2d 94 (Fla.1957); General Development Utilities, Inc. v. Davis, 375 So. 2d 20 (Fla. 2d DCA 1979); State Farm Fire and Casualty Co. v. Oskierko, 334 So. 2d 61 (Fla. 3d DCA 1976); Spear v. Martin, 330 So. 2d 543 (Fla. 4th DCA 1976); Francis v. General Motors Corp., 287 So. 2d 146 (Fla. 3d DCA 1973), cert. denied, 293 So. 2d 716 (Fla.1974); Lovelace v. Sobrino, 280 So. 2d 514 (Fla. 3d DCA 1973); Coquina Ridge Properties v. East West Co., 255 So. 2d 279 (Fla.…
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Highlands Ins. Co. v. Lucci, 423 So. 2d 947 (Fla. 3d DCA 1982)…he acted in self-defense. A movant for summary judgment must conclusively refute affirmative defense asserted by the non-movant. First Independent Bank, N.A. v. Stottlemyer & Shoemaker Lumber Co., 384 So. 2d 952 (Fla. 2d DCA 1980); Spear v. Martin, 330 So. 2d 543 (Fla. 4th DCA 1976); accord Proprietors Insurance Co. v. Siegel, 410 So. 2d 993 (Fla. 3d DCA 1982); General Development Utilities, Inc. v. Davis, 375 So. 2d 20 (Fla. 2d DCA 1979). Whether Vincent believed he was acting in self-defense and whether hi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. Graham, 237 So. 2d 330 (Fla. 4th DCA 1970)
- Cent. Invs., Inc. v. OLD S. Golf Util. Corp., 197 So. 2d 17 (Fla. 4th DCA 1967)