Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

December 16, 2016 by admin

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

41
Fla. L. Weekly D2740d
Top 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.”).

* *
*

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982