Silber v. Campus Sweater and Sportswear
| Decision Date | 03 June 1975 |
| Docket Number | No. V--347,V--347 |
| Citation | 313 So.2d 409 |
| Parties | Saul SILBER, Appellant, v. CAMPUS SWEATER & SPORTSWEAR, Appellee. |
| Court | Florida District Court of Appeals |
Lynn M. LoPucki of Schwartz, Schwartz & LoPucki, Gainesville, for appellant.
William D. Reynolds, Gainesville, for appellee.
This is an appeal from a summary judgment for appellee (plaintiff below) entered and filed on December 19, 1973, and from an order entered on March 6, 1974, which denied appellant's motions for rehearing, for summary judgment on appellant's counterclaim and for stay of writ of execution and granted appellee's motion to dismiss appellant's counterclaim.
Appellee, an Ohio corporation, filed suit against appellant on an open account for goods sold and delivered to appellant. Appellant answered denying that the amount claimed was due and owing and included a counterclaim which alleged that appellee shipped certain goods to appellant which appellant had not ordered; that upon receipt of the goods, appellant promptly demanded that appellee accept return of them which was refused; that appellant stored the goods and a portion of them were stolen and the remainder were sold by appellant at greatly reduced prices; that appellant incurred expenses in preserving and disposing of the goods.
Appellee's motion for summary judgment was based upon the pleadings, the admissions, appellant's failure to answer interrogatories and an affidavit filed by appellee. A counter affidavit was filed by appellant the day after the hearing but it was not considered by the trial court and we do not consider it here. After entry of the summary judgment, appellant moved for a stay of execution on the ground that appellee corporation, an Ohio corporation, had not obtained a permit to do business in the State of Florida, as is required by Section 613.01, Florida Statutes, and, therefore, under Section 613.04, Florida Statutes, was not entitled to process from the courts of this state.
Appellant contends that the trial court erred in granting appellee's motion for summary judgment. We agree. The pleadings raise an issue of fact on the question of whether or not the amount claimed was due and owing by appellant to appellee. The admissions referred to do nothing to dispell the foregoing issue. Also, failure of appellant to answer interrogatories forms no basis for entry of the summary judgment. It is only the Answers to interrogatories that may be considered on motion for summary judgment (Rule 1.510, Florida Rules of Civil Procedure). Rule 1.380(a)(2) and (4), Florida Rules of Civil Procedure, sets out appellee's remedy for failure of appellant to answer interrogatories and appellee has not followed that procedure.
The affidavit filed by appellee in support of the motion for summary judgment is insufficient to establish a lack of material issue of fact. It does not identify the account and merely states conclusions rather than the factual basis therefor and thus does not comply with Rule 1.510(e), F.R.C.P., which states that:
'. . . Affidavits . . . shall set forth such facts as would be admissible in evidence . . .'
See Deerfield Beach Bank v. Mager, Fla.App. (2d), 140 So.2d 120. In addition, the affidavit is not specific as to who allegedly owes the account. It states that the claim is a valid...
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First Nat. Entertainment Corp. v. Brumlik, 87-1961
...Leesburg, Florida, 433 So.2d 32 (Fla. 5th DCA 1983); Campbell v. Salman, 384 So.2d 1331 (Fla. 3d DCA 1980); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA 1975); Garwood v. Equitable Life Assurance Society of U.S., 299 So.2d 163 (Fla. 3d DCA 1974); cert. denied 321 So.2d......
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...conclusively the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 45 (Fla.1966); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla.1st DCA 1975); Hurricane Boats, Inc. v. Certified Industrial Fabricators, Inc., 246 So.2d 174 (Fla.3d DCA 1971), and cases ci......
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Crosley's Estate, In re, 78-2405
...deficiencies make the affidavit an insufficient basis to support the summary judgment in this case. See Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA 1975); Hurricane Boats, Inc. v. Certified Indus. Fab., Inc., 246 So.2d 174 (Fla. 3d DCA 1971); Antonio v. Barnes, 464 F.......
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