MARTHA EDWARDS AND JOHN B. EDWARDS, HER HUSBAND, APPELLANTS,
v.
KINGS POINT HOUSING CORP., A FLORIDA CORPORATION, SYKES FLOORING COMPANY, A FLORIDA CORPORATION, NORTH RIVER INSURANCE COMPANY, A CORPORATION, AND ACOUSTI ENGINEERING COMPANY, APPELLEES; KINGS POINT HOUSING CORPORATION, APPELLANT, V. MARTHA EDWARDS AND JOHN B. EDWARDS, HER HUSBAND, SYKES FLOORING COMPANY, A FLORIDA CORPORATION, NORTH RIVER INSURANCE COMPANY, A CORPORATION, AND ACOUSTI ENGINEERING COMPANY, APPELLEES
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The court reversed summary judgments against the Edwards and Kings Point Housing Corporation because the defendant Acousti Engineering Company failed to meet its burden of proving the absence of a genuine issue of material fact, and because a non-final order could not support a res judicata defense.
A defendant seeking summary judgment must conclusively prove the absence of any genuine issue of material fact, and a non-final order cannot serve as the basis for a res judicata defense.
[1] A defendant moving for summary judgment must affirmatively prove the absence of any genuine issue of material fact; plaintiff's inability to prove negligence from persona…
[2] A non-final order granting summary judgment in a prior action cannot serve as the basis for a res judicata defense in a subsequent action.
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Join FLexlaw to unlock all legal intelligenceMartha and John Edwards sued Acousti Engineering Company and others for negligence. Kings Point Housing Corporation filed a crossclaim against Acousti…
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PER CURIAM.
Two appeals have been consolidated. In Case No. 76-1418 the plaintiffs, Martha and John Edwards, appeal a summary final judgment against them in favor of the defendant Acousti Engineering Company. In Case No. 76-1519 the defendant Kings Point Housing Corporation appeals a summary final judgment on its crossclaim in favor of codefendant, Acousti Engineering Company. We reverse in both appeals. In Case No. 76-1418, we conclude that Acousti failed to meet its burden of showing conclusively the absence of any genuine issue of material fact. Acousti relied solely upon Mrs. Edwards’ deposition testimony, but all this shows is that Mrs. Edwards could not of her own knowledge prove that the defendant was negligent. This is not enough to negate the issue of the defendant’s negligence. Matarese v. Leesburg Elks Club, 171 So. 2d 606 (Fla.2d DCA 1965); Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. Supreme Court, opinion filed September 8, 1977).
In Case No. 76-1519 the summary judgment was entered on the basis of res judicata. In an earlier third party complaint by Kings Point against Acousti, involving the same issue, the trial court entered an “order granting summary judgment.” However, this was not a final appealable order; it therefore could not be the basis of res judicata.
REVERSED and REMANDED.
ALDERMAN, C. J., and CROSS, J., and MILLER, ROBERT P., Associate Judge, concur.
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Travelers Express, Inc. v. Myriam Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981)…dicata and collateral estoppel would not apply. Armellini Express Lines, Inc. v. Sexton, 384 So. 2d 310 (Fla. 5th DCA 1980); Donnell v. Industrial Fire and Casualty Co., 378 So. 2d 1344 (Fla. 3d DCA 1980); Edwards v. Kings Point Housing Corporation, 351 So. 2d 1073 (Fla. 4th DCA 1977).…
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Hoechst Celanese Corp. v. FRY, 693 So. 2d 1003 (Fla. 3d DCA 1997)…an an interlocutory order which could not provide the basis for a claim of res judicata or collateral estoppel. See Donnell v. Industrial Fire and Casualty Co., 378 So. 2d 1344, 1346 (Fla. 3d DCA 1980); see also Edwards v. Kings Point Housing Corp., 351 So. 2d 1073, 1074 (Fla. 4th DCA 1977) (holding order granting summary judgment was not a final appealable order, therefore it could not be the basis for res judicata). . We, of course, express no opinion on the ruling made by the Ocala court as this is a matte…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Matarese v. Leesburg Elks Club, 171 So. 2d 606 (Fla. 2d DCA 1965)