Triple R Development v. Golfview Apartments I

Plaintiff development company sued buyer for defaulting on real estate purchase contract for apartment buildings, and sought payment of deposit paid by buyer. Buyer raised affirmative defense that it had not determined its eligibility for tax credits for property. Buyer failed to file counter-affidavit in response to developer's affidavit in support of motion for summary judgment. Burden of proof can shift to non-movant to offer evidence, once movant has met its initial burden of production. Developer introduced persuasive evidence that buyer's pro forma acknowledged a determination of its eligibility and that buyer had entered into negotiations for sale of tax credits. (STEIGMANN, concurring; POPE, dissenting.)