MARY LUCILLE TURRELL MOSELEY, APPELLANT,
v.
H. PATRICIA TURRELL, APPELLEE
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In a quiet title action, the trial court granted summary judgment in favor of the plaintiff (appellee), but the appellate court reversed, finding that genuine issues of material fact existed regarding whether valuable consideration was given for a property transfer and whether the transfer was procured through undue influence, duress, or coercion.
The trial court improperly granted summary judgment because genuine issues of material fact existed at the time of the ruling that precluded summary judgment. The moving party (appellee) failed to present sufficient evidence to conclusively overcome the affirmative defenses raised by appellant.
[1] Summary judgment is precluded when genuine issues of material fact exist regarding whether consideration was received for a property transfer.
[2] Summary judgment is precluded when genuine issues of material fact exist regarding whether a deed and property transfer were procured by undue influence, duress, or coerc…
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Join FLexlaw to unlock all legal intelligence“In order to be entitled to summary judgment, it is incumbent upon the plaintiff, here appellee, to overcome any affirmative defenses by presenting evidence sufficient to demonstrate conclusively that the issues created by the affirmative defenses are dispelled.”
Establishes the legal standard for summary judgment when affirmative defenses are raised
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Join FLexlaw to unlock all legal intelligenceAppellee sought to quiet title to improved real estate in Dade County, Florida. Both appellant and appellee moved for summary judgment. The trial cour…
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KEHOE, Judge.
Appellant, defendant below, brings this appeal from a summary judgment dated November 5, 1976, entered by the trial court in favor of appellee, plaintiff below. Appellant contends that genuine issues of material facts existed, at the time of the granting of summary judgment by the trial court, which, pursuant to Fla.R.Civ.P. 1.510, precluded the proper entry of summary judgment. We agree; therefore, the summary judgment appealed is reversed.
This action was instituted when appellee sought to quiet title to certain improved real estate in Dade County, Florida. During the course of the litigation, both appel lant and appellee moved for summary judgment; after a hearing, the trial court granted appellee’s motion. The ensuing summary judgment is the subject of this appeal.
Appellant contends that the trial court improperly granted appellee’s motion for summary judgment because, at the time of its entry, there existed genuine issues of material facts, i. e., (1) whether Jerome A. Turrell received valuable consideration for the transfer of the subject property and (2) whether the execution of a certain deed and transfer of the subject property were procured by appellee under conditions of undue influence, duress, and coercion at a time when Jerome A. Turrell had insufficient legal capacity. These factual issues were put into contention by appellant’s answer and affirmative defenses to appellee’s second amended complaint.
In order to be entitled to summary judgment, it is incumbent upon the plaintiff, here appellee, to overcome any affirmative defenses by presenting evidence sufficient to demonstrate conclusively that the issues created by the affirmative defenses are dispelled. See, e. g., Johnson & Kirby, Inc. v. Citizens Nat. Bank, 338 So. 2d 905 (Fla. 3d DCA 1976); First Mortgage Inv. v. Boulevard Nat. Bank of Miami, 327 So. 2d 830 (Fla. 3d DCA 1976); Fernandez v. Cunningham, 268 So. 2d 166 (Fla. 3d DCA 1972); Underwriters Insurance Company v. Sisung, 174 So. 2d 461 (Fla. 3d DCA 1965); and Fla.R.Civ.P. 1.510. After examining the various pleadings, etc., before the trial court at the time that it granted the summary judgment herein, we can find no such contravention of the affirmative defenses raised by appellant as would dissipate them. In the absence of such a finding, we have concluded that the summary judgment was improperly entered; therefore, it is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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Owner's Adjustment Bureau, Inc. v. OTT, 402 So. 2d 466 (Fla. 3d DCA 1981)…Dreyfus and Owner's pleaded the affirmative defense of truth, which, in the absence of conclusive evidence negating this defense, precluded a summary judgment on liability. Markham v. Thompson, 368 So. 2d 957 (Fla. 3d DCA 1979); Moseley v. Turrell, 354 So. 2d 121 (Fla. 3d DCA 1978); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So. 2d 830 (Fla. 3d DCA 1976). See Hannah v. James A. Ryder Corp., 380 So. 2d 507 (Fla. 3d DCA 1980). Ott disingenuously argues that the conclusive evidence requir…
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Markham v. Thompson, 368 So. 2d 957 (Fla. 3d DCA 1979)…in favor of appellee there existed justiciable questions of fact in regard to the issue of rescission and that the facts, as shown by the proofs before the trial court, did not justify the imposition of the judgment. See, e. g., Moseley v. Turrell, 354 So. 2d 121 (Fla. 3d DCA 1978); Steinhardt v. Lehman, 338 So. 2d 64 (Fla. 3d DCA 1976); and Megdell v. Wieder, 327 So. 2d 781 (Fla. 3d DCA 1976); and Fla.R. Civ.P. 1.510. We note that in a previous appeal we stated that the complaint, as amended in this cause…
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City OF Miami v. Gates, 393 So. 2d 586 (Fla. 3d DCA 1981)…urden affirmatively and conclusively to demonstrate the absence of a genuine issue which would negate the defense as a matter of law, so as to justify a summary judgment on the question. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Moseley v. Turrell, 354 So. 2d 121 (Fla. 3d DCA 1978), and cases cited. Therefore, as to Count III only,8 the order below is reversed and the cause remanded for appropriate disposition of the laches issue.9 Affirmed in part, reversed in part. . Although the order did not dispose of…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson & Kirby, Inc. v. Citizens Nat'l Bank OF Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976)
- First Mortg. Invs. v. Boulevard Nat'l Bank OF Miami, 327 So. 2d 830 (Fla. 3d DCA 1976)
- Underwriters Ins. Co. v. Sisung, 174 So. 2d 461 (Fla. 3d DCA 1965)
- Marilyn Kay Fernandez as Administratrix CTA of the Estate of Sam Kay v. Cunningham, 268 So. 2d 166 (Fla. 3d DCA 1972)