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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
HENRY A. MORRONI and
F. ANNETTE MORRONI,
Case No. 2D04-2846
CORPORATION III, a Delaware
Opinion filed June 8, 2005.
Appeal from the Circuit Court
for Lee County;
John S. Carlin, Judge.
Ralph P. Richard of Law Office of
Ralph P. Richard, Fort Myers,
Enrico G. Gonzalez, Temple Terrace,
Henry Morroni and Annette Morroni appeal the trial court's order granting
summary judgment in favor of Household Finance Corporation in the mortgage
foreclosure action filed by Household against the Morronis. The Morronis raised three
points on appeal. The first two points are without merit, but the third point warrants
On February 17, 2004, Household filed a motion for summary judgment.
On March 2, 2004, the Morronis filed a memorandum of fact and law in opposition to the
motion. The memorandum pointed out the twenty-eight affirmative defenses raised by
the Morronis and that Henry Morroni had filed an affidavit in opposition to an earlier
motion for summary judgment filed by Household in 2001.1 Despite the affidavit and the
affirmative defenses, the trial court granted summary judgment, finding that no affidavits
had been filed and that there did not appear to be any genuine issue of material fact in
need of determination.
The Morronis argue, and we agree, that the trial court erred in granting
summary judgment. Household's complaint filed in June 2001 alleged that the Morronis
failed to make payments on their mortgage from March 2001 onward. The twenty-eight
affirmative defenses alleged, among other things, that the Morronis made advance
payments towards the mortgage for the months of March, April, May, June, July, and
August of 2001. Household never factually refuted the affirmative defenses or
established that they were legally insufficient. Therefore, Household did not establish
its entitlement to summary judgment. See Jones v. City of Winter Haven, 870 So. 2d 52
(Fla. 2d DCA 2003) (holding that the party seeking summary judgment must not only
establish that no genuine issues of material fact exist as to the party's claims but must
1 In 2001, Household filed a motion for summary judgment and Henry Morroni
filed an opposing affidavit. The motion was never ruled on by the trial court because the
foreclosure action was voluntarily dismissed by Household. However, the trial court
later granted relief from the dismissal, which it found to be fraudulent, and reinstated the
action. Household then filed another motion for summary judgment in 2004.
also either factually refute the affirmative defenses or establish that they are legally
insufficient); Manassas Inves., Inc. v. O'Hanrahan, 817 So. 2d 1080 (Fla. 2d DCA 2002)
(holding that in order for the movant to prevail on a summary judgment motion, movant
must either factually refute the affirmative defenses or establish that they are legally
insufficient). In addition, the trial court should have considered the affidavit filed by
Henry Morroni in 2001, which alleged facts in support of the affirmative defenses, in
determining whether summary judgment was appropriate. See Fla. R. Civ. P. 1.510(c)
("The [summary] judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file together with the
affidavits, if any, show that there is no genuine issue as to any material fact . . . .").
Accordingly, we reverse the trial court's order of summary judgment and
remand for further proceedings.
DAVIS and KELLY, JJ., Concur.
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