Robson v. Bethel

BERANEK, Judge,

dissenting:

I respectfully dissent. In this ejectment action the plaintiff/appellee filed an affidavit and attached the warranty deed between the parties which had been properly recorded. In my view the plaintiff’s affidavit and the deed negated the existence of any issue of fact as to an agreement that appellant retained a life estate in the subject property. Appellant did not file an affidavit opposing the motion for summary judgment. Under these circumstances I conclude that the movant for summary judgment satisfied the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Under the circumstances, the appellant failed to come forward with counter evidence sufficient to reveal a genuine issue. As was most recently stated by the Florida Supreme Court in Landers v. Milton, 370 So.2d 368 (Fla.1979), “It is not enough for the opposing party merely to assert that an issue does exist.” I would, therefore, affirm the summary judgment below.