DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
ADVANTA IRA SERVICES, LLC,
Appellant,
v.
FTE PROPERTIES, LLC, and WORLDWIDE TRUSTEE SERVICES,
LLC,
Appellees.
No. 2D20-2704
September 10, 2021
Appeal from the Circuit Court for Hillsborough County; Paul L.
Huey, Judge.
Felix G. Montanez of The Law Office of Felix G. Montanez, P.A.,
Tampa, for Appellant.
Erin P. Newell of Denali Law Group, P.A., Fort Myers, for Appellee
FTE Properties, LLC.
No appearance for remaining Appellee.
MORRIS, Chief Judge.
Advanta IRA Services, Inc. (Advanta), appeals a final summary
judgment entered in favor of FTE Properties, LLC (FTE), in an
underlying interpleader action filed by a title company after the
closing of a real estate transaction. We reverse because FTE, as the
party moving for summary judgment, failed to refute Advanta's
affirmative defense or establish its legal insufficiency.
I. Background
Advanta and FTE engaged in a joint venture to purchase,
remodel, and sell a residential property. When the house was
completed and sold, a dispute arose between Advanta and FTE
regarding the amount of money each should receive from the
remaining sale proceeds. FTE claimed entitlement to a portion of
the proceeds, whereas Advanta claimed an entitlement to all of the
proceeds based on a series of loans to FTE. The closing agent filed
an interpleader action against Advanta and FTE, and after the agent
was discharged from liability and dismissed from the action,
$142,907.36 of the sale funds remained.
FTE moved for summary judgment against Advanta, arguing
that Advanta should be awarded only the amounts reflected in four
promissory notes, totaling $103,500, and interest up to the date of
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closing. FTE filed an affidavit from its manager. Advanta filed an
affidavit in response to the motion for summary judgment in which
the affiant stated that in addition to the amounts reflected in the
promissory notes, Advanta was owed an additional $21,527.84 it
had loaned to FTE to pay contractors in connection with
improvements to the property. Advanta later filed additional
documents purporting to show that the additional funds were
loaned to FTE. The trial court granted FTE's motion for summary
judgment and awarded Advanta a total of $121,590, representing a
principal amount of $103,500, as reflected in the promissory notes,
and interest calculated to the date of closing in the amount of
$18,090.13. The trial court did not award the additional amount of
money claimed to have been loaned by Advanta to FTE.
On appeal, Advanta first argues that the trial court erred in
discounting its affidavit which established that there was a genuine
issue of material fact regarding whether Advanta had loaned FTE
additional money not reflected in the promissory notes. This
argument is without merit because Advanta's affidavit was
insufficient. Even though the affidavit contained a statement that
the facts were based on the affiant's personal knowledge, the
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affidavit failed to state the affiant's role in Advanta, the facts
regarding the additional loan to FTE that would be admissible in
evidence, or how the affiant is competent to testify to the facts
regarding the additional loan to FTE; the affidavit thus lacks
sufficient information to allow a court to conclude that the affiant
possesses the competency to testify that FTE owed Advanta
additional money. See Fla. R. Civ. P. 1.510(e) (2020)1 ("Supporting
and opposing affidavits must be made on personal knowledge, must
set forth such facts as would be admissible in evidence, and must
show affirmatively that the affiant is competent to testify to the
matters stated therein."); Rodriguez v. Avatar Prop. & Cas. Ins., 290
So. 3d 560, 563 (Fla. 2d DCA 2020) (holding that affidavit from a
"duly authorized corporate representative" was insufficient because
it did not state that it was based on personal knowledge, it did "not
identify her title or specify her corporate duties," and it omitted any
information about her relevant skill sets or experience, making it
impossible to conclude that she was competent to testify to the
1 Rule 1.510 was amended in 2020, effective May 1, 2021, and
this provision is now found in subsection (c)(4). See In re
Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d 72 (Fla. 2021).
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matters set forth in the affidavit); Johns v. Dannels, 186 So. 3d 620,
622 (Fla. 5th DCA 2016) ("The conclusory assertion that [the affiant]
is basing the affidavit on 'personal knowledge' does not satisfy the
rule's requirement that he 'show affirmatively that [he] is competent
to testify' and that he 'set forth such facts as would be admissible in
evidence.' A factual predicate for the testimony is required, just as
it would be required at trial." (second alteration in original)). As for
the various documents later submitted by Advanta, such as receipts
and time sheets, Advanta has not demonstrated that the affiant was
competent to testify to the matters in the documents, that the
documents were authenticated, or how the documents proved that
Advanta loaned FTE additional money. See Bryson v. Branch
Banking & Trust Co., 75 So. 3d 783, 786 (Fla. 2d DCA 2011) ("The
unauthenticated copies of default letters . . . were insufficient for
summary judgment purposes because only competent evidence may
be considered in ruling on a motion for summary judgment.");
Gidwan v. Roberts, 248 So. 3d 203, 208 (Fla. 3d DCA 2018)
("Because 'only competent evidence may be considered by the court
in ruling upon a motion for summary judgment,' a document
attached to a motion for summary judgment or a document
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attached to an affidavit that is not otherwise authenticated is not
competent evidence." (quoting Daeda v. Blue Cross & Blue Shield of
Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997))). Therefore,
Advanta has not shown that the trial court erred in failing to rely on
the affidavit or documents submitted by Advanta.
However, we find merit in Advanta's second point on appeal.
Advanta argues that FTE failed to refute Advanta's affirmative
defense in which Advanta alleged that it had a superior claim to the
property in part because it had loaned FTE $15,977.84 in addition
to the loans reflected in the four promissory notes. Advanta argues
that FTE never rebutted this claim or established that it was legally
insufficient.
"Where a defendant pleads affirmative defenses, the plaintiff
moving for summary judgment must either factually refute the
affirmative defenses by affidavit or establish their legal
insufficiency." Bryson, 75 So. 3d at 785; see also Haven Fed. Sav.
& Loan Ass'n v. Kirian, 579 So. 2d 730, 733 (Fla. 1991) ("A court
cannot grant summary judgment where a defendant asserts legally
sufficient affirmative defenses that have not been rebutted." (citing
Ton-Will Enters. v. T & J Losurdo, Inc., 440 So. 2d 621 (Fla. 2d DCA
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1983))). In its first affirmative defense, Advanta alleged that it had
loaned FTE $15,977.84 in addition to the $103,500 reflected in the
promissory notes. FTE did not factually refute this allegation in its
affidavit; it merely addressed the $103,500 owed on the notes.
Therefore, the trial court erred in granting FTE's motion for
summary judgment.2
2 We note that the Florida Supreme Court recently adopted the
federal summary judgment standard. In re Amendments to Fla. R.
Civ. P. 1.510, 309 So. 3d 192. In doing so, the supreme court noted
that since 1966, "Florida courts have required the moving party
conclusively 'to disprove the nonmovant's theory of the case in
order to eliminate any issue of fact.' " Id. at 193 (quoting Thomas
Logue & Javier Alberto Soto, Florida Should Adopt the Celotex
Standard for Summary Judgment, 76 Fla. B.J., Feb. 2002, at 20,
22). By contrast, under the federal standard, "there is 'no express
or implied requirement . . . that the moving party support its
motion with affidavits or other similar materials negating the
opponent's claim.' " 309 So. 3d at 193 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). However, the rule amendment
does not apply to this case because the rule amendment became
effective on May 1, 2021, and is prospective. See 309 So. 3d at 195;
Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (noting
that the new change to rule 1.510 is "a prospective rule
amendment"); Tank Tech, Inc. v. Valley Tank Testing, LLC, 46 Fla. L.
Weekly D1264, D1265 n.1 (Fla. 2d DCA June 2, 2021) (holding that
amendment to rule 1.510 did not apply because final judgment had
been entered before the effective date of the change, May 1, 2021,
and noting that the rule change applies prospectively).
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Accordingly, we reverse the final summary judgment. In light
of our reversal, we need not address the remaining issues on
appeal.
Reversed and remanded.
LUCAS and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.
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