circuit court 18th circuit_05-2009-ca-74735_objection to msj

8/7/2019 Circuit Court 18th Circuit_05-2009-CA-74735_Objection to MSJ

1/5

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUITOJTFLORIDA, IN AND FOR BREVARD COUNTY

CHASE HOM E FINANCE LLC, Ca se No .: 05 -2009 -CA-74735-XXXX-XX

D efen dan t, P ro S e

I-J


2/5

"U nder the Florida state court procedure, the existence of any com petent ev idence creating anissue of fact, how ever credible or incredible, substantial or triv ial, stops the inquiry and precludessumm ary ju dgm en t, so lo ng a s th e "slig hte st do ub t" is ra ised " West's F lo rid a P ra ctice S erie s, 4 F la. P rac .,C iv il P ro ce du re R . 1 .5 10(2 008 -20 09 ed .). Dreggors v. Wausau Ins. Co., 995 So.2d 547, held that on am otion for summary judgm ent, unless and until m aterial facts at issue presented to the trial court are socry sta lliz ed , co nc lusiv e, an d c om pe llin g as to le av e n oth ing fo r th e co urt's d ete rm in atio n b ut q ue stion s oflaw , those facts, as well as any defenses, must be subm itted to the jury for resolution. Christian v.Overstreet Paving Co., further explains that if the record reflects the existence of any genuine issue ofm aterial fact, or possibility of issue, or if the record raises even the slightest doubt that an issue mayex ist, summ ary ju dgme nt is im prop er, 67 9 S o.2 d 83 9.

In the sum mary judgment proceeding, the m ovant bears the burden at all times of clearly andunequivocally establishing right of summary judgment, and judgment may not be granted if anycontrov erted issue of m aterial facts exists or if proofs supporting m otion fail to ov ercom e ev ery theoryupon w hich, under pleadings, adv ersary's position m ight be sustained, HaLey v. Harvey BuiLding, Inc.,

1 68 S o.2d 33 0.In the motion for summary judgment hearings, if there is any doubt about the possibility of

m aterial issues of fact, the doubt should be resolved in favor of the non-moving party. "If th e re co rdreflects ev en the possibility of a m aterial issue of fact, or if different inferences can be draw n reasonablyfrom the facts, the doubt must be resolved against the moving party and summary judgment must bedenied," RNR Investments Ltd. Partnership v. PeopLes First Community Bank, 8 12 S o.2 d 5 61.

T he m ere fact that D efendant did not raise factual issues through affidav it in opposition prior tohearing on m otion for summary judgm ent should not preclude D efendant from being able to assert thoseissues of fact at the hearing. T he "m ere fact that ev idence concerning intent of parties is uncontrov erteddoes not necessarily mean that there is no genuine issue as to this material fact, and that summary

2


3/5

judgment is thus proper, if uncontroverted evidence is lawfully susceptible of two or more conflicting.inferences," Marshall v. Gawel, 696 So.2d 937. Existence of a reasonable inference contrary to thatasserted by the non-moving party should not result in the entry of summary judgment, but rathershould be left to the jury to determine whether a preponderance of the evidence supports theinferences suggested by the moving party, Corbitt v. Kuruvilla, 745 So.2d 545. (even where facts areuncontroverted, summary judgment is not available if different inferences can be reasonably drawn fromuncontroverted facts) Albelo v. Southern Bell, 682 So.2d 1126. A case which further establishes thestandard for necessary documents in evidence is Flaherty v. Metal Products Corp., 83 So.2d 9, whichexplains that "where there are numerous issues on questions of fact and nothing in record before court byway of deposition, affidavit, admission, or otherwise upon which court could have determined thatanswers in allegation, if a sufficient defense, were in fact true, court's order, even if construed as finalsummary judgment holding there was no issue of material fact, could not be sustained."

It is axiomatic that Summary Judgment may not be granted unless the moving party is able toshow that no genuine issues of material fact exist. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966);Kemper v. First Nat'l Bank of Dayton, Ohio, 277 So. 2d 804 (Fla. 3d DCA 1973). Where discovery is notcomplete, the facts are not sufficiently developed to enable the trial court to determine whether genuineissues of material facts exist. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). Thus, wherediscovery is still pending, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So. 2d1142, 1144 (Fla. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in the FloridaRules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary

judgment when discovery is in progress and the deposition of a party is pending."); Henderson v. Reyes,702 So. 2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositionshad not been completed and a request for the production of documents was outstanding.); Collazo v.Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997) (holding that a trial court should not entertain a motion

3


4/5

fo r summ ary jud gm en t w hile d isco ve ry is still p en ding ); Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1stD CA 1993); Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987).

In ruling on a m otion for summary judgm ent, the c?urt is not to resolv e conflicting issues of fact,but rather to determ ine w hether any genuine issues of m aterial fact exist, and if so, the court m ust denythe m otio n, Trustees of Internal Imp. Trust Fund v. Lord, 189 So.2d 534, see also Jack Drury &Associates. Inc. v. City of Fort Lauderdale, 203 So.2d 361.

"Parties to a law suit are entitled to discov ery as prov ided in the F lorida R ules of C iv il Procedure,including the taking of depositions, and it is rev ersible error to enter summary judgm ent w hen discov eryis in pro gress an d the d ep osition of a pa rty is p en din g. See Sica v. Sam Calliendo Design. Inc. . 623

In short, as the COUlt s ta te s in Williams, summ ary ju dgme nts sh ou ld b e sp arin gly g ran te d a nd on lyin those cases w here there rem ains no genuine issue of any m aterial fact, and if there are issues of fact andthe slightest doubt rem ains, a summary judgm ent cannot be granted, Williams v. City of Lake City. 62So.2 d 7 32 .

WHEREFORE, Defendant prays that this Honorable Court deny Plaintiffs Motion forSummary Judgm ent and for such other and further relief as this H onorable C ourt deem s necessary andjust.

Respectfully Submitted,March 4, 2010~U/JLThomas A.WebsterDefendant, Pro Se4655 Elena WayMelbourne, FL 32934

4


5/5

CERTIFIC ATE O F SERVIC EI hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail,this 41h day of March, 2010, to Ashleigh L. Politano, Esq., Florida Default Law Group, P.L.,9119 Corporate Lake Drive, Suite 300, Tampa, Florida 33634

Thomas A. WebsterDefendant, Pro Se4655 Elena WayMelbourne, FL 32934

5 ) 5

5

circuit court 18th circuit_05-2009-ca-74735_objection to msj

Documents