207 So. 3d 958
Fla. Dist. Ct. App.2016Background
- T-Quip (appellant) was sued by Edward C. Tietig (appellee) on three counts: fraud under §713.31(2), slander of title, and abuse of process.
- Appellant filed answers to counts 1 and 2 raising affirmative defenses and filed a renewed motion to dismiss count 3; the motion to dismiss was never heard or ruled on and no answer was filed to count 3.
- Appellee moved for final summary judgment and submitted a sworn declaration supporting the complaint allegations; no evidence addressed appellant’s affirmative defenses and appellant did not file opposing affidavits.
- Appellant did not attend the summary judgment hearing; the trial court entered final summary judgment awarding over $1.33 million (largely punitive damages) to appellee.
- The Fifth District reviewed de novo and focused on whether appellee met the burdens for summary judgment, including disproving affirmative defenses and, where no answer existed, conclusively negating every defense that might be raised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper where movant’s affidavit only supported complaint allegations | Movant (Tietig) argued his sworn declaration established facts and entitled him to summary judgment | T-Quip argued the declaration did not disprove appellant’s pleaded affirmative defenses and failed to meet the heavier burden on a motion filed before an answer to count 3 | Reversed: movant did not disprove affirmative defenses or meet the unusually heavy burden to negate all possible defenses to an un-answered count |
| Whether movant must disprove affirmative defenses to obtain summary judgment | Movant contended no genuine issue of material fact existed and judgment was proper | Appellant contended affirmative defenses remained and were not addressed by movant’s evidence | Reversed: movant failed to address/negate affirmative defenses as required by precedent |
| Effect of failing to file a reply to affirmative defenses | Movant relied on complaint-supported affidavit and lack of opposing affidavits | Appellant noted defenses were pleaded and need not be met by opposing affidavits unless movant conclusively establishes entitlement | Court treated lack of a reply as denial of defenses but held movant still bore burden to disprove them |
| Standard where summary judgment is sought before an answer | Movant treated procedure as permissible under rule and urged summary judgment | Appellant invoked the ‘unusually heavy’ burden to negate every defense that might be raised in an answer | Court applied the heavy burden and found movant failed to satisfy it |
Key Cases Cited
- Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (standards of review for summary judgment)
- Stop & Shoppe Mart, Inc. v. Mehdi, 854 So. 2d 784 (moving party must disprove affirmative defenses to obtain summary judgment)
- Haynes v. Arman, 192 So. 3d 546 (moving party need not be met by counter-affidavit unless movant conclusively establishes entitlement)
- Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164 (summary judgment evidence standards)
- Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195 (opponent not initially required to submit affidavits to establish affirmative defenses)
- Greene v. Lifestyle Builders of Orlando, Inc., 985 So. 2d 588 (heavy burden when summary judgment filed before an answer)
- Reno v. Adventist Health Sys./Sun-Belt, Inc., 516 So. 2d 63 (failure to file a reply has effect of denying affirmative defenses)