O'Connor v. Marston

District Court of Appeal of Florida

O'Connor v. Marston

717 So. 2d 82, 1998 Fla. App. LEXIS 9720, 1998 WL 429405

CourtDistrict Court of Appeal of Florida

DecidedJuly 31, 1998

DocketNo. 97-3215

StatusPublished

This text of 717 So. 2d 82 (O'Connor v. Marston) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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O'Connor v. Marston, 717 So. 2d 82, 1998 Fla. App. LEXIS 9720, 1998 WL 429405 (Fla. Ct. App. 1998).

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Opinion

DAUKSCH, Judge.

This is an appeal from a non-final order determining liability against appellants, and a judgment thereon. Fla. R.App. P. 9.130(a)(3)(e)(iv).

We have no transcript of the testimony which appellee relies upon to refute the affidavit of appellant in opposition to the summary judgment. That is, although appel-lee says appellant’s testimony at a hearing, or hearings, refutes his affidavit, we cannot know this because no transcript is available. While it is true it is up to appellant to demonstrate the court erred in its orders and judgments and, generally speaking, they are presumed correct, it is also well established that summary orders and judgments are not favored and the moving parties must refute, disprove or avoid material evidence demonstrating a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla.1979); Florida Dep’t of Agric. v. Co Bungee, Inc., 678 So.2d 920 (Fla. 5th DCA 1996); Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064 (Fla. 5th DCA), rev. den., 666 So.2d 146 (Fla.1995).

Because the affidavit of appellant raises genuine issues of material fact it was error to grant a summary judgment as to liability against him.

The order is quashed, the judgment reversed and this cause remanded for further proceedings.

ORDER QUASHED; REMANDED.

GRIFFIN, C.J., and ANTOON, J., concur.

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DAUKSCH, Judge.

This is an appeal from a non-final order determining liability against appellants, and a judgment thereon. Fla. R.App. P. 9.130(a)(3)(e)(iv).

We have no transcript of the testimony which appellee relies upon to refute the affidavit of appellant in opposition to the summary judgment. That is, although appel-lee says appellant’s testimony at a hearing, or hearings, refutes his affidavit, we cannot know this because no transcript is available. While it is true it is up to appellant to demonstrate the court erred in its orders and judgments and, generally speaking, they are presumed correct, it is also well established that summary orders and judgments are not favored and the moving parties must refute, disprove or avoid material evidence demonstrating a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla.1979); Florida Dep’t of Agric. v. Co Bungee, Inc., 678 So.2d 920 (Fla. 5th DCA 1996); Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064 (Fla. 5th DCA), rev. den., 666 So.2d 146 (Fla.1995).

Because the affidavit of appellant raises genuine issues of material fact it was error to grant a summary judgment as to liability against him.

The order is quashed, the judgment reversed and this cause remanded for further proceedings.

ORDER QUASHED; REMANDED.

GRIFFIN, C.J., and ANTOON, J., concur.

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717 So. 2d 82, 1998 Fla. App. LEXIS 9720, 1998 WL 429405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-marston-fladistctapp-1998.

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