41
Fla. L. Weekly D2740dTop of Form

Civil
procedure — Torts — Trial court erred in entering final summary judgment in
favor of plaintiff where plaintiff failed to negate affirmative defenses or
otherwise show how affirmative defenses were legally insufficient and, as to
one cause of action to which no answer was filed, failed to conclusively negate
every defense that might have been presented in the answer — Further,
defendant was not yet obligated to file answer to count which was subject of
pending motion to dismiss

T-QUIP
OF FLORIDA, INC., Appellant, v. EDWARD C. TIETIG AND TODD UDELSON, Appellees.
5th District. Case No. 5D15-3517. Opinion filed December 9, 2016. Appeal from
the Circuit Court for Brevard County, George W. Maxwell, III, Judge. Counsel:
Douglas D. Marks, of Boyd & Marks, L.L.C., Melbourne, for Appellant. Mark
Tietig, of Tietig & Tietig, P.A., Merritt Island, for Appellee, Edward C.
Tietig. No Appearance for Appellee, Todd Udelson.

(LAMBERT,
J.) T-Quip of Florida, Inc., (“Appellant”) appeals the final summary judgment
awarding Edward C. Tietig (“Appellee”) damages just over $1.33 million, with
the bulk of the judgment being an award of punitive damages. Because Appellee
failed to negate the affirmative defenses pleaded or to otherwise show how they
were legally insufficient and, as to the one cause of action to which no answer
was filed, failed to conclusively negate every defense that might have been
presented in the answer, we reverse.

Appellee
filed suit, alleging the following three causes of action: (1) fraud based upon
violations of section 713.31(2), Florida Statutes (2009); (2) slander of title;
and (3) abuse of process. Appellant filed separate answers to the first two
causes of action and a renewed motion to dismiss the third cause of action.
Appellant’s counsel was later granted leave to withdraw, and the motion to
dismiss was never called up for hearing or otherwise addressed by the trial
court. Appellee thereafter filed a motion for final summary judgment, and in
support of the motion, filed a sworn declaration pursuant to section 92.525,
Florida Statutes (2015), as to the factual allegations set forth in his
complaint. No other summary judgment evidence was filed in support of the
motion nor were affidavits filed by Appellant in opposition to the motion.
Additionally, neither the motion nor the declaration addressed the affirmative
defenses raised by Appellant. Following a hearing, that Appellant did not
attend, the court rendered the final summary judgment now on appeal.

The
standard of review of a trial court’s entry of a final summary judgment is de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). The standards for granting summary judgment applicable in this
case are familiar. The party moving for summary judgment has the burden of
conclusively proving the nonexistence of any genuine issue of material fact. Stop
& Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784, 786 (Fla. 5th DCA 2003)
(citations omitted). “[U]nless the moving party conclusively establishes, as a
matter of law and fact, its entitlement to the summary judgment, the opposing
party is not required to file a counter-affidavit to defeat the motion.” Haynes
v. Arman, 192 So. 3d 546, 548-49 (Fla. 5th DCA 2016) (citing Lindsey v.
Cadence Bank, N.A., 135 So. 3d 1164, 1167 (Fla. 1st DCA 2014)). The moving
party must also disprove the affirmative defenses or establish that they are
insufficient as a matter of law. Mehdi, 854 So. 2d at 786 (citations
omitted). Finally, “[a] party opposing a motion for summary judgment has no
initial obligation to submit affidavits or proof to establish its affirmative
defenses.” Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195, 198 (Fla.
5th DCA 2015) (citing Medhi, 854 So. 2d at 786).

Here,
Appellee’s sworn declaration in support of summary judgment only supports the
allegations of the complaint. “Where the movant merely denies the affirmative
defenses and the affidavit in support of summary judgment only supports the
allegations of the complaint and does not address the affirmative defenses, the
burden of disproving the affirmative defenses has not been met.” Medhi,
854 So. 2d at 786-87 (citations omitted).1 Thus, Appellee did not meet his
burden of conclusively disproving the affirmative defenses or otherwise
demonstrating their legal insufficiency.

Finally,
at the time of the summary judgment hearing, Appellant had not filed an answer
to the third cause of action for abuse of process. Appellant had filed a
renewed motion to dismiss count three, asserting that Appellee failed to allege
or plead sufficient ultimate facts to properly state a cause of action for
abuse of process. As previously stated, neither party called up for hearing
Appellant’s renewed motion to dismiss count three of Appellee’s complaint. Furthermore,
Appellant had not withdrawn the motion, nor had the court separately ruled on
the motion prior to the hearing on Appellee’s motion for final summary
judgment. As such, because the court had not addressed the renewed motion to
dismiss, Appellant was not yet obligated to file an answer to count three.

While
Florida Rule of Civil Procedure 1.510(a) permits the filing of a motion for
summary judgment before an answer has been filed, under such circumstances, the
party moving for summary judgment has an “ ‘unusually heavy’ burden to
conclusively negate every defense that might be presented in the answer.” Greene
v. Lifestyle Builders of Orlando, Inc., 985 So. 2d 588, 589 (Fla. 5th DCA
2008) (citations omitted). We find that Appellee did not meet this heavy
burden.

Accordingly,
we reverse the final summary judgment and remand for further proceedings.

REVERSED
and REMANDED. (COHEN and WALLIS, JJ., concur.)

__________________

1Appellee
did not file a reply to Appellant’s affirmative defenses. Thus, the affirmative
defenses are deemed denied. See Reno v. Adventist Health Sys./Sun-Belt, Inc.,
516 So. 2d 63, 65 (Fla. 2d DCA 1987) (“[P]laintiff’s failure to file a reply to
the affirmative defense had the effect of denying the allegations of the
defense.”).

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