E. Qualcom Corporation (“Qualcom”) appeals various summary judgments entered against it in a foreclosure action centered around non-payment of master association assessments owed to Global Commerce Center Association, Inc. (the “Association”). We reverse becáuse the Association failed to meet its burden of proving the absence of genuine issues of material fact with regard to Qualcom’s allegations that it suffered damages as a result of the Association’s failure to provide ■ proper maintenance and upkeep.
The appellant, Qualcom, is a telecommunications company that began doing business in 2003. That same year, Qualcom purchased property in the Global Commerce Center, a commercial building located in Weston, Florida. The appellee, the Association, is the master homeowners’ association for the Global Commerce Center. At the time Qualcom moved into the building, the company was still in its “start-up stage.”
In January 2008, the Association filed a complaint against Qualcom seeking foreclosure against Qualcom for its alleged failure to pay commercial homeowners’ association assessments. Qualcom filed an answer with affirmative defenses and a
In July 2009, after a period of discovery between the, parties, the Association filed a motion for partial summary judgment of foreclosure based on Qualcom’s alleged failure to show proof of payment of any and all assessments allegedly due by Qual-com to .the Association. Additionally, in August 2009, the Association filed a motion for final summary judgment as to Qual-com’s counterclaim asserting that Qualcom had failed to prove damages to a reasonable degree of certainty as a matter of law.
Following a September 2009 hearing, the trial court ■ granted the Association’s motion for partial summary judgment of foreclosure and entered judgment against Qualcom in the amount of $55,200.82 for unpaid assessments, attorney’s fees, and costs. Subsequently, following a hearing on the Association’s motion for final summary judgment on Qualcom’s counterclaim, the trial court granted that motion as well, writing that, “for the reasons stated in the record, as to damages ... there is no issue of material fact in dispute.” Qualcom timely appealed both orders.
Review of an order granting summary judgment is de novo. Gomez v. Fradin,
Qualcom argues that the Association, as the moving party, failed to meet its burden of proving the absence of a genuine issue of material fact on Qualcom’s counterclaim. We agree. In support of its claim for damages to personal property, Qualcom produced pictures of damaged equipment as well as various invoices, receipts and proofs of payment evidencing Qualcom’s original purchases for almost all of the damaged equipment. Rather than submitting opposing evidence to show that Qualcom’s personal property suffered no damage or-that the property had ho market value when it was damaged, the Association successfully argued that Qualcom had failed to prove its damages to a reasonable degree of certainty.
Proving its damages to a reasonable degree of certainty, however, was not the standard that Qualcom was required to meet to overcome summary judgment. “Summary judgment may not be used as a
Qualcom next argues that the trial court erred in granting the Association’s motion for summary judgment on Qual-com’s counterclaim for lost profits. We agree.
The Association argued that since Qualcom had never earned a net profit in its business, any claim for “lost prospective profits” was too speculative. In W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd.,
A business can recover lost prospective profits regardless of whether it is established or has any “track record.” The party must prove that 1) the defendant’s action caused the damage and 2) there is some standard by which the amount of damages may be adequately determined.
Id. at 1351; see also Fu Sheng Indus. Co. v. T/F Sys., Inc.,
Qualcom produced photographs of water-damaged equipment as well as testimony that the damage led to interruptions in service which in turn led to loss of clients and caused Qualcom to develop a poor reputation among’its target market. This evidence was sufficient to create a genuine issue of material fact with respect to causation, the first requirement under the W.W. Gay test.
The second prong of the W.W. Gay test requires that Qualcom provide “some standard by which the amount of damages may be adequately determined.” W.W. Gay,
In 4 Corners Insurance, Inc. v. Sun Publications of Florida, Inc.,
The Association points out that Qual-com’s president, acknowledged multiple problems that Qualcom encountered which may also have affected its business income. These obstacles included a computer virus that contaminated Qualcom’s equipment, better prices from competitors, and the impact that the economic downturn had on Qualcom’s customers. These problems, however, do not affect the “yardstick” which could be used' to measure lost profit. Rather, the evidence of these other problems goes to causation, and if anything, just shows that there was an issue of material fact which should have precluded summary judgment on that issue.
The questions of causation and the amount of “lost profit” damages are genuine issues of material fact that remain to be decided by the finder of fact in this case. Thus, the trial court erred in determining that the Association was entitled to summary judgment in its favor as a matter of law with respect to Qualcom’s claim for lost profit damages.
Next, Qualcom argues the trial court erred in granting the Association’s motion for partial final judgment of foreclosure because the trial court failed to address Qualcom’s affirmative defense of set-off for damages incurred due to the Association’s failure to timely repair Qual-com’s roof. We agree.
“In the absence of some proof contradicting an affirmative defense, entry of summary judgment is improper.” Fla. Web Printing, Inc. v. Impact Adver., Inc.,
When a party raises affirmative defenses, a summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted. Thus, in order for a plaintiff to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses. In such instances, the burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.
Id. at 1289. (alterations removed) (citations and internal quotation marks omitted). Set-off is an affirmative defense which precludes summary judgment if the moving party does not “demonstrate that the defendant could not prevail.” See Fla. Web Printing,
Here, Qualcom raised the affirmative defense of set-off based on- its allegations that the Association had a duty to maintain the roof of Qualcom’s building,, and that failure to maintain the roof caused damages to Qualcom’s personal property and business opportunities. This set-off is based on the same operative facts and legal principles as Qualcom’s counterclaim for damages. As stated above, however, there are issues of material fact that remain "with respect to Qualcom’s counterclaim. Thus, as “there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted,” the partial summary judgment of foreclosure should not have been granted. See Alejandre,
Sometime after filing its notice of appeal, Qualcom paid the $55,200.82 judgment in order to avoid the sale of its property. The Association argues that Qualcom waived its right to appeal the partial summary judgment of foreclosure by paying the judgment. We disagree. Where a party pays an adverse money judgment to avoid a forced sale of property, the payment is deemed “involuntary” and the payment does not result in a waiver of the right to appeal the judgment. See Whipple v. JSZ Fin. Co.,
While this appeal was pending, the trial court granted a satisfaction of judgment. On remand, the trial court must vacate the satisfaction of judgment as the trial court was without jurisdiction to enter the satisfaction while this appeal was pending. See Spencer v. DiGiacomo,
Accordingly, we reverse the final summary judgment against Qualcom on its counterclaim; we reverse the partial summary judgment of foreclosure in favor of the Association; we order the trial court to vacate the satisfaction of judgment; and we remand for further proceedings consistent with this opinion.
Reversed and'remanded for further proceedings consistent with this opinion.
Notes
.. We also note that at the hearing on the Association’s motion for summary judgment on Qualcom’s counterclaim, the trial court indicated that it was awarding summary judgment in favor of the Association because Qualcom had failed to identify in advance, pursuant to Florida Rule of Civil Procedure 1.510(c), any evidence on which it would rely in opposition to the motion for summary judgment. Qualcom, however, as the non-moving party did not have to present. any evidence to prevail at summary judgment because the Association did not first meet its burden of proving that there were no genuine issues of material fact. Thus, entry of summary judgment on this issue was improper.
. The record shows that Qualcom actually did have a track record with respect to some of the "lost profit” that it is claiming. For example, Qualcom contends that it had two tenants that abandoned the property because of the leaking roof before the terms of their contracts with Qualcom expired. Qualcom claims that it lost nearly $250,000 in unpaid rents because these tenants left. If Qualcom ultimately proves that the tenants abandoned the property because of the Association’s failure to promptly fix the damaged roof, the measurement of damages would be "reasonably certain.” See Sostchin,