DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CABO FLATS JUPITER, LLC,
Appellant,
v.
LENA DAWLEY,
Appellee.
No. 4D17-1678
[January 24, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Joseph George Marx, Judge; L.T. Case No.
502013CA002836XXXXMB.
Gary S. Phillips of Phillips Cantor & Shalek, P.A., Hollywood, for
appellant.
Carol A. Gart of Carol A. Gart, P.A., Boca Raton, for appellee.
KLINGENSMITH, J.
Plaintiff, Lena Dawley, obtained a judgment against PGA Mexx, LLC
(“PGA”). Thereafter, Dawley filed a writ of garnishment to seize $15,350
that Cabo Flats Jupiter, LLC (“Cabo Jupiter”) allegedly owed to PGA. Cabo
Jupiter claims that the trial court’s order granting summary judgment in
favor of Dawley was improper. We agree.
Appellant’s notice of deposition was addressed specifically to Delia
Valles, Cabo Jupiter’s director of finance for Cabo Flats’ chain of
franchisees, and not as “the corporate representative” with respect to
accounting inquiries. Valles testified during her deposition that she
believed that Cabo Jupiter was indebted to PGA in the amount of $15,350.
As a result, Dawley filed a motion for summary judgment and argued that
Cabo Jupiter’s testimony directly supported her right to the $15,350.
Cabo Jupiter filed an affidavit in opposition to the motion signed by Steven
Fuller, a certified public accountant for PGA and Cabo Jupiter. In the
affidavit he disputed the testimony of Valles, and asserted that the in-
house accountant did not always make appropriate journal entries as
transactions occurred. He further alleged that the owner of the parent
company overseeing Cabo Jupiter and PGA was credited the $15,350
against funds due to him from the corporation. Fuller maintained that
Cabo Jupiter was not indebted to PGA. Based on Valles’ deposition
testimony, the trial court granted Dawley’s motion for summary judgment.
The standard of review for a trial court’s ruling on a summary judgment
is de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.
2d 126, 130 (Fla. 2000). “A summary judgment should not be granted
unless the facts are so crystallized that nothing remains but questions of
law.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). A corporation,
when met with a motion for summary judgment, may not contradict its
previous deposition testimony via affidavit to create a material issue of
fact; however, an exception arises when the affidavit contains a credible
explanation by the affiant for the discrepancy between earlier and later
testimony. See Carriage Hills Condo., Inc. v. JBH Roofing & Constructors,
Inc., 109 So. 3d 329, 335-36 (Fla. 4th DCA 2013).
In this case, Valles testified that she believed that Cabo Jupiter was
indebted to PGA. Additionally, Fuller’s affidavit contained a credible
explanation as to why Valles wrongly believed Cabo Jupiter to be indebted
to PGA. See id. As such, there remained a material issue of fact as to
whether Cabo Jupiter was indebted to PGA.
We hold that the trial court erred by granting summary judgment in
favor of Dawley, and therefore remand for further proceedings.
Reversed and remanded.
TAYLOR and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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