       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 31, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D17-1839 & 3D17-1542
                          Lower Tribunal No. 15-9441
                              ________________


                          American Shuttle, Inc.,
                                    Appellant,

                                        vs.

                   In Re: Martin Zilber, vs. Southern
                       Shuttle Services, Inc., etc.,
                                    Appellees.



      Appeals from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

     Patino & Associates, P.A., and Ralph G. Patino; Ralph O. Anderson P.A.,
and Ralph O. Anderson (Fort Lauderdale), for appellant.

      Roniel Rodriguez IV, P.A., and Roniel Rodriguez IV, for appellee Harvard
Financial Services LLC a/a/o Martin Zilber.

Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.

      PER CURIAM.
      American Shuttle, Inc. (“American Shuttle”) appeals the trial court’s order

granting final summary judgment in favor of Harvard Financial Services LLC

(“Harvard Financial Services”) and the subsequent denial of its motion for

rehearing or post-judgment relief. Because there are genuine issues of material

fact, we reverse.

      The underlying action surrounds the execution of an asset purchase

agreement between American Shuttle and Southern Shuttle Services, Inc.

American Shuttle was not an original party.       The original proceedings were

between Martin Zilber and Southern Shuttle. A judgment was entered against

Southern Shuttle in the amount of $103,269.63. American Shuttle was named a

party defendant after the trial court granted plaintiff assignee Harvard Financial

Services’ motion to invoke supplementary proceedings and implead third parties

on September 1, 2016.

      On January 30, 2017, the trial court issued a notice to appear to the three

impleaded party defendants under section 56.29, Florida Statutes (2018).

Contained in the notice to appear was a provision requiring the defendants to file

an answer and assert any affirmative defenses within ten days of service.

Furthermore, the notice added that any evidence offered in support of any

affirmative defense after the deadline would be inadmissible at trial. American

Shuttle timely filed its answer and affirmative defenses on February 9, 2017.



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       On April 6, 2017, Harvard Financial Services filed a motion for summary

judgment against American Shuttle. Harvard Financial Services argued that the

deposition testimony of American Shuttle’s corporate representative, Robert Beers,

was inconsistent with his earlier affidavit filed in conjunction with American

Shuttle’s affirmative defenses.   On May 25, 2017, American Shuttle filed a

response to the motion for summary judgment attaching new evidence to

corroborate its defenses. On May 31, 2017, the trial court held a hearing on the

motion. At the outset, the trial court ruled that it would not consider the new

evidence proffered by American Shuttle as it was untimely. In so doing, the trial

court granted the motion for summary judgment against American Shuttle and

entered a judgment for damages in the amount of $103,269.93.

       American Shuttle filed a timely first appeal as a precautionary measure on

June 20, 2017 pending resolution of its motion for rehearing or post-judgment

relief. On July 13, 2017, the trial court denied the motion for rehearing or post-

judgment relief. American Shuttle subsequently filed a second timely appeal on

August 8, 2017, challenging the denial. The appeals were consolidated upon order

of this court.     American Shuttle argues that its fifth affirmative defense

asserting the payment of all sums due under the asset purchase agreement and

Robert Beers’ sworn affidavit and testimony raise a genuine dispute of material

fact. We agree. Based on the record before us, we conclude a genuine dispute of



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material fact exists regarding whether American Shuttle has paid all sums due

under the asset purchase agreement. Gidwani v. Roberts, 248 So. 3d 203 (Fla. 3d

DCA 2018) (reversing summary judgment where the moving party failed to proffer

evidence conclusively establishing the absence of a genuine issue of material fact);

Calarese v. Weissfisch, 87 So. 3d 1225 (Fla. 3d DCA 2012) (reversing summary

judgment where the defendant’s affirmative defenses were not conclusively

disproved by affidavit or other sworn evidence); Riverwood Condo. Ass’n Inc. v.

Litecrete, Inc., 69 So. 3d 983 (Fla. 3d DCA 2011) (reversing summary judgment

where the moving party did not refute the defendant’s affirmative defenses and

allegations in a sworn affidavit and deposition testimony were not challenged).

      Reversed and remanded.




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