IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

T

- QUIP OF FLORIDA, INC. ,

Appellant ,
v. Case No. 5D 15

- 3517 EDWARD C. TIET I G AND TODD UDELSON ,

Appellee s

. ________________________________/ Opinion filed December 9, 2016 Appeal from the Circuit Court for B revard County , George W. Maxwell, III , Judge. Douglas D. Marks, of Boyd & Marks, L

. L

. C

. , Melbourne, for Appellant. Mark Tietig, of Tietig & Tietig, P.A., Merritt Island, for Appellee , Edward C. Tietig

. No Appearance for Appellee, Todd Udelson.

LAMBERT, J.
T

- Quip of Florida, Inc. , (“Appellant”) appeals the final summary judgment awarding Edward C. Tie t i g (“ Appellee”) damages just over $1. 3 3 million, with the bulk of the judgment being an award of punitive damages. Because Appellee failed to negate the2

affirmative defenses pleaded or to otherwise show how they were legally insufficient and, as to the one cause of action to which no answer was filed, failed to conclusively negate

e v ery defense that might have been presented in the answer, we reverse. Appellee filed suit, alleging the following three causes of action : (1) fraud based upon violations of section 713.3 1 (2) , Florida Statutes (2009); (2) slander of title; and (3) abuse of process. Appellant filed separate answers to the first two causes of action and

a renewed motion to dismiss the third cause of action . Appellant’s counsel was later granted leave to withdraw, and the motion to dismiss was never called up for hearing or otherwise addressed by the trial court. Appellee thereafter filed a motion for final summary judgment , and in support of the motion, filed a s worn declaration purs uant to section 92.52 5, Florida Statutes (2015) , as to the factual allegations set forth in his complaint. No other summary judgment evidence was filed in support of the motion nor were affidavits filed by Appellant in opposition to the motion. Additionally, n ei t her the motion n or the declaration addressed the affirmative defenses raised by Appellant. Following a hearing , t h at Appellant did not attend , the court rendered the final summary judgment now on appeal. The standard of review of a trial court’s entry of a final summa ry ju d gment is de

n ovo. Vo lusia Cty

. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). The standard s for granting summary judgment applicable in this case are familiar. T he party moving for summary judgment has the burden of conclusive ly proving the nonexistence of any genuine issue of mat eri al f a ct. Stop & Shoppe Mart, Inc. v

. Mehdi , 854 So. 2d 784, 786 (Fla. 5th DCA 2003) (citations omitted). “[ U ] nless the moving party conclusively establishes, as a matter of law and fact, its entitlement to the summary3

judgment, the opposing party is not re qu ired to fi l e a counter
- affidavit to defeat the motion

. ” Haynes v

. Arman , 192 So. 3d 546, 548

– 49 (Fla. 5th DCA 2016) (citing Lindsey

v. Cade nce Bank, N.A., 135 So. 3d 1164 , 1167 (Fla. 1st DCA 20 14 )). The moving party must also disprove the affirmative defenses or establish that they are insufficient as a matter of law. Mehdi , 854 So. 2d at 786 (citations omit ted). Finally, “[a] party opposing

a m otion for summary judgment has no initial obligation to submit affidavits or proof to establish its affirmative defenses. ” Colon v. JP Morgan Chase Bank, N A , 162 So

. 3 d 195, 198 (Fla. 5th DCA 2015) (citing Medhi , 854 So. 2d at 786 )

. He r e, Appellee’s sworn declaration in support of summary judgment only supports the allegations of the complaint. “Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.” Medhi , 854 So. 2d at 786

- 87 (citations omitted). 1 Thus, Appellee did not m e et his burden of conclusively disp roving the affirmative defenses or otherwise demonstrating their legal insufficiency. Finally, a t the time of the summary judgment hearing, Appellant had not filed an answer to the third cause of action for abuse of p r o c es s

. Appellant ha d filed a renewed motion to dismiss count three, asserting that Appellee failed to allege or plead sufficient ultimate facts to properly state a cause of action for abuse of process. As previously stated, n either party called up for hearing Appellant’s renewed motion to dismiss count

1 Appellee did not file a reply to Appellant’s affirmative defenses . Thus , the affirmative defenses a re deemed denied. See Reno v. Adventist Health Sys

. /Sun

- B elt, Inc. , 516 So. 2 d 63 , 65 (Fla. 2d DCA 1987) ( “ [P] laintiff’s failure to file a reply to the affirmative defense had the effect of denying the allegation s of the defense .” )

.4

three of Appellee’s complaint. Furthermore, Appellant had not withdraw n the motion, nor had the court separately rule d on the motion p rior to the hearing on Appellee’s motion for final summary judgment. As such, because the court had not addressed the renewed motion to dismiss , Appellant was not yet obligated to file an answer to count three

. While Florida Rule of Civil Procedure 1.510(a) permits the filing of a motion for summary judgment before an answer has been filed, under s uch circumstances, the party moving for summary judgment has an “ ‘ unusually heavy ’ burden to conclusively negate every defe nse that might be presented in the answer. ” Greene v. Lifestyle Builders of Orlando, Inc. , 985 So. 2d 588, 589 (Fla. 5th DCA 2008) (citations omitted). We find that Appellee did not meet this heavy burden. Accordingly, we reverse the final summary judgme nt and remand for further proceedings. REVERSED and REMANDED. COHEN and WALLIS, J J. , concur.