87 So. 3d 1225
Fla. Dist. Ct. App.2012Background
- Final order granted summary judgment to a judgment creditor in a proceeding supplementary against the judgment debtor’s wife.
- Order voided two quitclaims of real property as fraudulent under §726.105(1)-(2), Florida Statutes (2009).
- Underlying action arose from a failed business transaction between Alberto Weissfisch and Roberto Calarese; Maria Calarese was not a party to the underlying suit.
- On March 3, 2003, two quitclaims transferred a business parcel and a residence parcel from the husband to Maria Calarese.
- Weissfisch commenced supplementary proceedings on February 8, 2010, but only sought to set aside the business parcel deed; second deed discovered five weeks before motion but not amended in the pleadings.
- Weissfisch bore the burden on summary judgment to show no genuine issues of material fact and entitlement to judgment as a matter of law; the trial court erred in failing to conclusively refute affirmative defenses raised by Maria Calarese, including (1) failure to state a cause of action for the business parcel, (2) tenancy by the entireties, (3) homestead protections, and (4) statute of limitations under §726.110; case reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether movant showed no genuine issues of material fact for summary judgment | Weissfisch argues no genuine issues exist | Calarese asserts defenses preclude relief | No; summary judgment reversed for further proceedings |
| Whether third-party complaint properly stated a claim as to the business parcel | Weissfisch alleges valid claim against business parcel | Calarese contends pleadings insufficient | Remanded for further proceedings to address pleadings and defenses |
| Whether defenses of tenancy by the entireties, homestead, and §726.110 bar relief | Affirmative defenses should be conclusively refuted | Defenses forestall relief or limit it | Affirmative defenses not conclusively refuted; remand for proceedings on defenses |
Key Cases Cited
- Holl v. Talcott, 191 So.2d 40 (Fla.1966) (burden on summary judgment rests with movant to show no genuine fact issues)
- O’Neal v. Brady, 476 So.2d 294 (Fla.3d DCA 1985) (movant must negate affirmative defenses via affidavit or evidence)
- Gray v. Union Planters Nat’l Bank, 654 So.2d 1288 (Fla.3d DCA 1995) (plaintiff cannot prevail on summary judgment if defenses undisproved)
- Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45 (Fla.2001) (tenancy by the entireties considerations affect asset relief)
- Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So.2d 905 (Fla.3d DCA 1976) (affirmative defenses must be contradicted to sustain summary judgment)