Summary
holding order granting summary judgment was not a final appealable order, therefore it could not be the basis for res judicata
Summary of this case from Hoechst Celanese Corp. v. FryOpinion
Nos. 76-1418 — 76-1519.
October 11, 1977. Rehearing Denied December 9, 1977.
Appeal from the Circuit Court, Palm Beach County, T.E. Sholts, J.
Larry A. Klein, West Palm Beach, and Law Offices of Thomas G. Purdo, Boynton Beach, for appellants-Edwards.
Louisa H. Smith-Adam of Montgomery, Lytal, Reiter, Denney Searcy, West Palm Beach, for appellant-Kings Point Housing Corporation.
Marjorie D. Gadarian of Jones, Paine Foster, West Palm Beach, for appellees-Acousti Engineering Co.
Two appeals have been consolidated. In Case No. 76-1418 the plaintiffs, Martha and John Edwards, appeal a summary final judgment against them in favor of the defendant Acousti Engineering Company. In Case No. 76-1519 the defendant Kings Point Housing Corporation appeals a summary final judgment on its crossclaim in favor of codefendant, Acousti Engineering Company. We reverse in both appeals.
In Case No. 76-1418, we conclude that Acousti failed to meet its burden of showing conclusively the absence of any genuine issue of material fact. Acousti relied solely upon Mrs. Edwards' deposition testimony, but all this shows is that Mrs. Edwards could not of her own knowledge prove that the defendant was negligent. This is not enough to negate the issue of the defendant's negligence. Matarese v. Leesburg Elks Club, 171 So.2d 606 (Fla.2d DCA 1965); Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Wills v. Sears, Roebuck Co., 351 So.2d 29 (Fla. Supreme Court, opinion filed September 8, 1977).
In Case No. 76-1519 the summary judgment was entered on the basis of res judicata. In an earlier third party complaint by Kings Point against Acousti, involving the same issue, the trial court entered an "order granting summary judgment." However, this was not a final appealable order; it therefore could not be the basis of res judicata.
REVERSED and REMANDED.
ALDERMAN, C.J., and CROSS, J., and MILLER, ROBERT P., Associate Judge, concur.