Opinion
No. 4D05-3124.
December 13, 2006.
Appeal from The Circuit Court, Seventeenth Judicial Circuit, Broward County, Robert B. Carney, J.
Ira Marcus of Ira Marcus, P.A., Fort Lauderdale, for appellant.
Ian Gardner, Sunrise, pro se.
We reverse the summary judgment and remand for trial. The rule of Ellison v. Anderson, 74 So.2d 680 (Fla. 1954) (affidavit filed in opposition to motion for summary judgment may not contradict prior deposition testimony), does not apply to an affidavit of a witness purporting to be the first expression by the witness under oath in the litigation as to a fact in dispute even though it contradicts a prior out-of-court, non-sworn statement by the witness in a corporate document. See Andrews v. Midland Nat'l Ins. Co., 208 So.2d 136, 137 (Fla. 3d DCA 1968) (holding that witness is not irrevocably bound by his first written statement upon the issues of a case); see also Lawrence v. Pep Boys Manny Moe Jack Inc., 842 So.2d 303, 305 (Fla. 5th DCA 2003) (holding that court is required to view record evidence, including properly asserted supporting affidavits, in light most favorable to non-moving party, and if slightest doubt exists summary judgment must be reversed).
Reversed.
SHAHOOD, J., and LEWIS, TERRY P., Associate Judge, concur.