IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

JOELLE L. CARD,

††††††††††† ††††††††††† Appellant,

vs.††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† †††††††††††† Appeal No.01-3923-CI-88A

PROVIDIAN NATIONAL BANK,

††††††††††† ††††††††††† Appellee.

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Opinion filed ________________________

Appeal from Final Summary Judgment

Pinellas County Court, Civil Division

The Honorable William B. Blackwood

Joelle L. Card
67 Thatch Palm West
Largo, FL† 33770
Appellant, pro se

Flynn LaVrar, Esquire
5310 Northwest 33rd Ave., Suite 100
Fort Lauderdale, FL† 33309
Attorney for Appellee

ORDER AND OPINION

††††††††††† THIS CAUSE came before the Court on appeal, filed by Joelle L. Card (Ms. Card), from Final Summary Judgment, entered on May 1, 2001, in favor of Providian National Bank (Providian) for the total sum of $7557.98.† Upon review of the Initial Brief and the record, the Court finds that the lower court erred in granting Providianís Motion for Summary Judgment.[1]

††††††††††† The underlying cause of action was brought by Providian, a banking institution that maintains consumer credit accounts, to recover a principle balance of $6695.36, plus interest, for Ms. Cardís failure to pay according to the terms of the Credit Agreement for purchased consumer goods and/or cash advances.† In her Response, Ms. Card denied that she owed Providian any money.† Thereafter, Providian filed a Motion for Summary Judgment that averred, in part, that summary judgment should be granted as Ms. Card failed to raise any affirmative defenses in her Response.† Providian also attached a Proof of Claim Affidavit to its summary judgment motion, signed by the designated agent for Providian, which stated Ms. Card owed the principle sum of $6695.36.† Ms. Card countered by filing an opposing affidavit once again denying that she owed Providian money.† The lower court granted summary judgment finding that there were no justiciable issues of law or fact.

††††††††††† In reviewing the record de novo and in considering the evidence in the light most favorable to Ms. Card, the Court finds that Providian has failed to prove conclusively the nonexistence of any genuine issue of material fact.† See Dr. Phillips, Inc. v. L & W Supply Corp., 790 So.2d 539, 542 (Fla. 5th DCA 2001); see also Virginia Ins. Reciprocal v. Walker, 765 So.2d 229, 331 (Fla. 1st DCA 2000)(explaining the appellate standard of review of summary judgment).† Specifically, the record raises a doubt as to what sum of money, if any, Ms. Card owes Providian.† See id., see alsoHervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995)(finding that if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied).†

††††††††††† Further, the Court finds that Ms. Cardís failure to raise any affirmative defenses in her Response does not warrant the entry of summary judgment.† Although case law is clear that affirmative defenses cannot be alleged by affidavit in opposition to a motion for summary judgment, Ms. Cardís affidavit did not raise affirmative defenses but rather simply denied the facts contained in Providianís complaint.† See Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556, 557 (Fla. 3d DCA 1971)(stating that affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits); see also Wiggins v. Portmay Corporation, 430 So.2d 541, 542 (Fla. 1st DCA 1983)(defining affirmative defenses as defenses that raise some new matter which defeat an otherwise apparently valid claim).† Accordingly, because the pleadings show the existence of genuine issues of material fact, the lower courtís order must be reversed.

††††††††††† It is therefore

††††††††††† ORDERED AND ADJUDGED that the Final Summary Judgment is reversed and this cause is remanded for action not inconsistent with this Order and Opinion.†

††††††††††† DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 25th day of April 2002.††††††††††††††

††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† ††††††††††††

††

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NANCY MOATE LEY

Circuit Judge, Appellate Division

††††††††††††††††††††† ††††††††††††††††††††††† †††††††††††

Copies Furnished To:

The Honorable Walter Fullerton

Joelle L. Card

Flynn Lavrar, Esquire



[1] The Court notes that the Appellee failed to file an Answer Brief.† The Court finds that if the Appellee believes that the lower courtís Final Summary Judgment is not worthy of support, it should confess error and join the Appellant in seeking a reversal.† See Title and Trust Co. of Florida v. Salameh, 407 So.2d 1035, 1036 (Fla. 1st DCA 1981)(denouncing the appelleeís failure to file an answer brief)(citations omitted).