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Pita v. State Street Bank & Trust Co.

District Court of Appeal of Florida, Third District
Jan 17, 1996
666 So. 2d 268 (Fla. Dist. Ct. App. 1996)

Summary

holding that "[o]n a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses."

Summary of this case from Brockman v. Avaya, Inc.

Opinion

No. 95-1494.

January 17, 1996.

Appeal from the Circuit Court, Dade County, Juan Ramirez, Jr., J.

Elena C. Tauler Associates, Miami, and Robert L. Shearin, Boca Raton, for appellants.

Shapiro Fishman, Boca Raton, and Susan Minor, Coral Gables, for appellee.

Before COPE, GODERICH and GREEN, JJ.


This is an appeal from a final summary judgment of foreclosure where appellants raised payment as an affirmative defense. In support of its motion for summary judgment, the appellee bank submitted an affidavit of indebtedness. In response, appellants filed a counter affidavit asserting that they had made all payments due and that the bank had failed to properly credit their account. It is clear from these countervailing affidavits that a genuine issue of material fact exists as to whether payment was made by appellants. On a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses. E.g., Budweiser-Busch Distrib. Co. v. Keystone Lines, a Div. of Transcon Lines, 607 So.2d 503, 505 (Fla. 1st DCA 1992); Rice v. Mercy Hosp. Corp., 275 So.2d 566 (Fla. 3d DCA 1973). Thus, we hold that the entry of final summary judgment was error where a genuine issue of material fact remains unresolved. E.g., Moore v. Morris, 475 So.2d 666 (Fla. 1985); Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Perry Co. v. Union Am. Ins. Co., 664 So.2d 1036 (Fla. 3d DCA 1995). Accordingly, we reverse and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.


Summaries of

Pita v. State Street Bank & Trust Co.

District Court of Appeal of Florida, Third District
Jan 17, 1996
666 So. 2d 268 (Fla. Dist. Ct. App. 1996)

holding that "[o]n a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses."

Summary of this case from Brockman v. Avaya, Inc.

holding that "[o]n a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses."

Summary of this case from Pacific Employers Ins. v. Wausau Business Ins. Co.

holding that "[o]n a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses."

Summary of this case from Hernandez v. United A. Ins. Co., Inc.
Case details for

Pita v. State Street Bank & Trust Co.

Case Details

Full title:ARTURO PITA AND AIDA PITA, APPELLANTS, v. STATE STREET BANK AND TRUST…

Court:District Court of Appeal of Florida, Third District

Date published: Jan 17, 1996

Citations

666 So. 2d 268 (Fla. Dist. Ct. App. 1996)

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