69 So. 3d 983
Fla. Dist. Ct. App.2011Background
- Riverwood contracted Litecrete for roofing renovation of 32 units, clerestory windows, and wood repair; government inspections completed; Litecrete demanded balance due.
- Riverwood withheld payment under contract based on alleged defective work and damages caused by Litecrete.
- Riverwood asserted an affirmative defense of setoff, supported by Bauman's affidavit and deposition claiming defective work and property damage.
- Litecrete sued for amount owed, asserting breach of contract, unjust enrichment, and account stated; remaining contract balance not in dispute.
- Bauman testified that Litecrete's work was defective, unremedied, and caused property damage; damages itemized for multiple components.
- The trial court granted summary judgment for Litecrete; Riverwood appealed, asserting unresolved setoff issues and material fact questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether setoff defeats summary judgment when not contradicted by plaintiff | Litecrete contends no genuine issue exists; Bauman's affidavit not material. | Riverwood's setoff defense, supported by Bauman, forecloses summary judgment. | Summary judgment reversed; setoff unresolved precludes judgment. |
| Whether Bauman's affidavit can support material facts at summary judgment | Bauman's affidavit was properly disregarded as untimely or lacking personal knowledge. | Bauman's statements are based on personal knowledge as Riverwood's manager. | Bauman's affidavit properly considered; raises genuine issues of material fact. |
| Whether attorney's fees constitute recoverable damages affecting partial summary judgment | Attorney's fees are separate damages; setoff amount should be limited to repair costs. | Attorney's fees are damages under contract and should be offset against payment. | Partial summary judgment erroneous; must account for attorney's fees as damages. |
Key Cases Cited
- Maung v. Nat'l Stamping, LLC, 842 So.2d 214 (Fla. 3d DCA 2003) (affirmative defense not negated bars summary judgment)
- Emile v. First Nat'l Bank of Miami, 126 So.2d 305 (Fla. 3d DCA 1961) (affirmative defense of setoff defeats summary judgment absent opposition)
- Castor v. State, 365 So.2d 701 (Fla.1978) (general rule against raising new appellate issues)
- Williams v. Fla. Realty & Mgmt. Co., 272 So.2d 176 (Fla. 3d DCA 1973) (on appeal, record viewed in light most favorable to non-movant)