Atlantic Steel Fabricators, Inc. v. Condor Sales, Inc.

DOWNEY, Judge.

This is an appeal from an adverse summary final judgment in favor of the appel-lee.

Appellee sued appellant to recover commissions allegedly due and attached an exhibit to the complaint which purported to represent appellant’s admission of the amount due. Appellant answered the complaint and denied any amount due and denied that the exhibit attached to appellee’s complaint was an admission of commissions due. Appellant also filed a counterclaim for damages which appellee denied.

Appellee then filed a motion for summary judgment and a supporting affidavit which in pertinent part stated that the exhibit attached to the complaint “is an identical copy of business records maintained by [appellant] during the normal course of their business, and indicates the amount of commission earned by Condor Sales, Inc./Robert De Lizza”. Appellant filed a counter-affidavit which stated the exhibit was not genuine; that it was not a record of commissions owed but of commissions projected or anticipated. The affidavit also asserted that appellant had been injured by appel-lee’s conduct causing appellant to lose work.

And so we have a routine, garden variety motion for summary judgment with affidavit . and counter-affidavit clearly demonstrating a genuine issue of fact both as to the complaint and as to the counterclaim. No reference whatsoever was made by ap-pellee to the counterclaim yet it too seems to have been eliminated by the summary final judgment.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

DAUKSCH and MOORE, JJ., concur.