Moseley v. Turrell
| Decision Date | 24 January 1978 |
| Docket Number | No. 76-2148,76-2148 |
| Parties | Mary Lucille Turrell MOSELEY, Appellant, v. H. Patricia TURRELL, Appellee. |
| Court | Florida District Court of Appeals |
Stephen A. Freeman, Miami, for appellant.
Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
Before HAVERFIELD, C. J., and HENDRY and KEHOE, JJ.
Appellant, defendant below, brings this appeal from a summary judgment dated November 5, 1976, entered by the trial court in favor of appellee, plaintiff below. Appellant contends that genuine issues of material facts existed, at the time of the granting of summary judgment by the trial court, which, pursuant to Fla.R.Civ.P. 1.510, precluded the proper entry of summary judgment. We agree; therefore, the summary judgment appealed is reversed.
This action was instituted when appellee sought to quiet title to certain improved real estate in Dade County, Florida. During the course of the litigation, both appellant and appellee moved for summary judgment; after a hearing, the trial court granted appellee's motion. The ensuing summary judgment is the subject of this appeal.
Appellant contends that the trial court improperly granted appellee's motion for summary judgment because, at the time of its entry, there existed genuine issues of material facts, i. e., (1) whether Jerome A. Turrell received valuable consideration for the transfer of the subject property and (2) whether the execution of a certain deed and transfer of the subject property were procured by appellee under conditions of undue influence, duress, and coercion at a time when Jerome A. Turrell had insufficient legal capacity. These factual issues were put into contention by appellant's answer and affirmative defenses to appellee's second amended complaint.
In order to be entitled to summary judgment, it is incumbent upon the plaintiff, here appellee, to overcome any affirmative defenses by presenting evidence sufficient to demonstrate conclusively that the issues created by the affirmative defenses are dispelled. See, e. g., Johnson & Kirby, Inc. v. Citizens Nat. Bank, 338 So.2d 905 (Fla. 3d DCA 1976); First Mortgage Inv. v. Boulevard Nat. Bank of Miami, 327 So.2d 830 (Fla. 3d DCA 1976); Fernandez v. Cunningham, 268 So.2d 166 (Fla. 3d DCA 1972); Underwriters Insurance Company v. Sisung, 174 So.2d 461 (Fla. 3d DCA 1965); and Fla.R.Civ.P. 1.510. After examining the various pleadings, etc., before the...
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Owner's Adjustment Bureau, Inc. v. Ott
...this defense, precluded a summary judgment on liability. Markham v. Thompson, 368 So.2d 957 (Fla. 3d DCA 1979); Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So.2d 830 (Fla. 3d DCA 1976). See Hannah v. James A. Ryder ......
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City of Miami v. Gates
...as a matter of law, so as to justify a summary judgment on the question. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978), and cases cited. Therefore, as to Count III only, 8 the order below is reversed and the cause remanded for appropriate dis......
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Travelers Indemnity Co. v. K.R.D., Inc. d/b/a Biscayne Supermarket, 81-2422
...judgment on liability in the insured's favor and remand for trial by jury. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978). ...
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Markham v. Thompson, 78-776
...the facts, as shown by the proofs before the trial court, did not justify the imposition of the judgment. See, e. g., Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978); Steinhardt v. Lehman, 338 So.2d 64 (Fla. 3d DCA 1976); and Megdell v. Wieder, 327 So.2d 781 (Fla. 3d DCA 1976); and Fla......