Opinion
No. 92-0275.
December 30, 1992.
Appeal from the Circuit Court, St. Lucie County, Paul B. Kanarek, J.
Roger G. Orr, Fort Pierce, for appellants.
Gary L. Sweet of Warner, Fox, Seeley Dungey, Stuart, for appellee.
Appellee sued appellants to collect the balance due on a promissory note. After appellee filed suit, the parties entered into an agreement wherein appellants agreed to pay the past due amount, to bring the note current within sixty days and, thereafter, to make regular monthly payments. In return, appellee agreed to abate the lawsuit and to voluntarily dismiss the action provided appellants performed under the terms of the agreement. Several months later, appellee filed a motion for summary judgment in which it alleged appellants defaulted under the terms of the agreement. Appellee filed two affidavits in support of its motion for summary judgment. The affidavits, however, did not adequately refute the genuine issues of material fact raised by appellants' affirmative defenses and affidavits in opposition to the motion. Therefore, we reverse the trial court's summary final judgment in favor of appellee and remand this cause for further proceedings.
REVERSED and REMANDED.
DELL and STONE, JJ., concur.
GLICKSTEIN, C.J., concurs specially with opinion.
I agree with the majority's analysis and conclusion and write only to remind the parties of two principles followed by this court.
First, in Pompano Paint Co. v. Pompano Beach Bank Trust Co., 208 So.2d 152, 153 (Fla. 4th DCA 1968), the court said:
Where a plaintiff's affidavits do not contradict affirmative defenses raised by the opponent of the motion for summary judgment, the plaintiff is not entitled to a summary judgment even though his supporting affidavits may have made out a sufficient case based on the pleadings alone.
Second, in O'Brian Associates of Orlando, Inc. v. Tully, 184 So.2d 202 (Fla. 4th DCA 1966), the court rejected affidavits which contained only conclusions, not facts admissible into evidence. See also Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So.2d 174, 175 (Fla. 3d DCA 1971).
In my view the plaintiff's affidavit was facially insufficient. The plaintiff failed to meet the above burden, which could have been done by factually fleshing out the following:
2. That attached hereto is a true and correct copy of a Stipulation Agreement entered into between RELLER CONSTRUCTION, INC., WARREN FEDERGREEN, and MARK PHILLIPS.
3. FEDERGREEN and PHILLIPS as General Partners of WESTPORT PLACE ONE did not comply with the terms of Paragraph 3.
The following affidavit tendered by the defendants was equally insufficient:
2. That in his representative capacity he entered into a Stipulation and Agreement with the Plaintiff which Stipulation and Agreement provided for the reinstatement of the mortgage and the dismissal of the above-styled action.
3. That pursuant to the said Stipulation and Agreement he has made substantial payments to the Plaintiff.
4. That on or about June 28, 1991 he tendered further payment to the Plaintiff pursuant to the Stipulation and Agreement. The Plaintiff refused to accept the same.
Based upon the foregoing bare boned conclusions, there is no way for me to determine if the defendants did or did not comply with the parties' stipulation.