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summary judgment

Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein on July 28, 2019
Discovery, Trial Perspectives / Comments Off on Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis.  And, frankly, delay tactics should not work as an intentional means to delay the inevitable.  This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it.  

In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units and commercial units that had an active business function were assessed dues. The commercial owner, however, decided it was not going to pay assessments and, apparently, never did. The association foreclosed on the unit and filed a motion for summary judgment.  Right before the hearing on the motion for summary judgment, and after previous motions for continuance, the commercial condominium owner filed another motion for continuance to take another deposition, a motion to compel discovery, and a motion for leave to amend to add affirmative defenses.  The commercial condominium owner also filed an affidavit with conclusory averments that conflicted with the deposition testimony of its corporate representative.  The commercial condominium owner tried to argue that it was exempt from assessments because, among other things, it did not have an active business function although its corporate representative testified to the contrary (and there was other record evidence to refute this averment).  

The trial court, as affirmed by the appellate court, was not having any of what it perceived to be intentional delay.  The Third District explained:

The affidavit in opposition to summary judgment is replete with statements that are conclusory, speculative, contains hearsay or would otherwise not be admissible at trial. Moreover, the affidavit specifically contradicts the testimony by Weisser Realty’s [commercial condominium unit owner] designated corporate representative….

***

Despite having had two years since service of the complaint in which to schedule depositions and seek further discovery, it was only a week before the specially set summary judgment hearing that Weisser Realty moved to set the Association’s corporate representative’s deposition, and three days before the hearing that Weisser Realty filed motions to compel discovery and for leave to amend its affirmative defenses. As the Fifth District recently explained,

[i]f there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment. . . . However, if the non-moving party does not act diligently in completing discovery or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant summary judgment even though there is discovery still pending.

The trial court found no justification in the record for the last minute motions to continue discovery or to add additional affirmative defenses where the facts appeared to be well-established and sufficient to address at summary judgment. The trial court was within its discretion to grant summary judgment, where the filings mere days prior to a noticed summary judgment hearing appeared to be intended to delay the proceedings.

Weisser Realty Group, supra (internal citation omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Affirming Summary Judgment when there are Competing Expert Affidavits

Posted by David Adelstein on April 07, 2019
Evidence, Trial Perspectives / Comments Off on Affirming Summary Judgment when there are Competing Expert Affidavits

 

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidenceto determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law.

A court considering summary judgment must avoid two extremes. On the one hand, “a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact.” On the other hand, a “party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict.”

Gonzalez v. Citizens Property Ins. Corp., 2019 WL 1141236, *3 (Fla. 3d DCA 2019) (internal citations omitted).

The case of Gonzalez is a summary judgment case that I do not agree with it because it involves competing experts — a common scenario in many types of litigation.  It is a case where an insured sued its insurer for coverage under a property insurance policy.  Each side had an expert witness that opined as to the cause of a leak, which was an important issue as it pertained to whether the water damage was covered under the property insurance policy. 

The insurer moved for summary judgment based on its expert’s opinion that the leak was the result of normal wear and tear and thereby excluded under the policy.  The insured countered the summary judgment with an affidavit from its expert that the leak was due to wind damage which was covered under the policy.   The insured’s expert, however, inspected the roof after the roof was already replaced and, thus, the court concluded that this opinion was nothing more than conjecture that lacked “the required ‘discernible, factually-based chain of underlying reasoning’ necessary for an expert opinion to be admissible in evidence.”  Gonzalez, 2019 WL at *4.  The expert also based his opinion on wind speed which caused the damage that led to the leak by reviewing wind speeds in other locations around the day of the incident.  The court found that this was also nothing more than conjecture since relying on wind speed in one location to determine wind speed in a different location is not reliable.  Id. at *5. 

The reason I do not love this opinion–where the appellate court affirmed summary judgment in favor of the insurer–is because there were competing experts that rendered different opinions as to the cause of a leak.  There is nothing uncommon about competing experts and nothing uncommon about the fact that experts differ as to causation (or anything else regarding their respective opinions).  Experts rely on hearsay and assumptions and there are many times holes can be poked in the assumptions or the opinions extrapolated from the assumptions.  But, in my opinion, this should create a genuine issue of material fact for a jury to determine while assessing the credibility of the expert’s opinion and which opinion makes most sense as to the cause of a water leak.   An expert is not going to have personal knowledge because most experts, even the insurer’s expert in this case, are retained after-the-fact, e.g., after the leak occurred, the damage was discovered, and the loss reported to the carrier. 

 

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Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

Posted by David Adelstein on April 22, 2018
Appeal, Trial Perspectives / Comments Off on Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim.   The article also discusses the application of equitable subrogation dealing with an actual fact pattern.

Equitable subrogation, you say?  In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party.  The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt.  No one wants to pay for damages or a debt it believes were caused by a third party!

There are five (5) elements to an equitable subrogation claim that the subrogee, the party that paid off the damages or debt, must prove:

  1. The party (subrogee) made the payment to protects its own interests;
  2. The party (subrogee) did not volunteer the payment — it was not making the payment as a volunteer;
  3. The party (subrogee) was not primarily liable for the damages or debt it seeks reimbursement for; 
  4. The party (subrogee) paid off the entire debt it seeks reimbursement for; and
  5. Subrogation would not work any injustice, i.e., it would not be unfair.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 43 Fla.L.Weekly D868a (Fla. 2d DCA 2018) quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Notably, in Tank Tech, Inc., the trial court granted summary judgment against the party pursing equitable subrogation. Summary judgment was granted in favor of the defendant.  The appellate court reversed for the factual reasons discussed in the article.  

As you may know from reading this blog, a motion for summary judgment is reviewed on appeal under a de novo standard of appellate review.  Summary judgment is only proper if there are no genuine issues of material fact and the party moving for summary judgment is entitled to a judgment as a matter of law.

Where the defendant is the party moving for summary judgment, as here, ‘neither the trial court nor this court determines whether the plaintiff can prove [its] case; our function solely is to determine whether the pleadings, depositions, and affidavits conclusively show that the plaintiff cannot prove [its] case.’”  Tank Tech, Inc., supra, quoting Crandall v. S.W. Fla. Blood Bank, Inc., 581 So.2d 593, 595 (Fla. 2d DCA 1991).  The takeaway is that a plaintiff is NOT required to prove its entire case when responding to a defendant’s motion for summary judgment and the court’s job is not to determine whether the plaintiff can prove its case at trial.  Rather, the job is to determine whether the the undisputed material facts “conclusively show that the plaintiff cannot prove its case.”  Id.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Do Yourself a Favor: Have a Court Reporter at Important Hearings

Posted by David Adelstein on January 09, 2018
Appeal, Trial Perspectives / Comments Off on Do Yourself a Favor: Have a Court Reporter at Important Hearings

Make sure to have a court reporter at any substantive hearing, particularly a hearing that could result in an appeal.

Here is why. In a slip and fall action, Lago v. Costco Wholesale Corp., 42 Fla. L. Weekly D2599a (Fla. 3d DCA 2017), the trial court granted summary judgment in favor of the defendant. The trial court’s summary judgment order provided NO elaboration or reasoning as to the basis of granting the summary judgment. It was probably a simple order that stated that the defendant’s motion for summary judgment was granted. This does not provide a whole lot of comfort to parties or even practitioners that receive an order with no reasoning. It certainly does not bring me any comfort.

The plaintiff appealed and argued that the trial court erred in entering an unelaborated order. The appellate court disagreed on this point: “‘[w]hile it might be desirable for the trial judge to specify his reasons for granting or denying a summary judgment there does not appear to be any rule or decision that requires him to do so.’” Lago, supra, quoting Newman v. Shore, 206 So.2d 279, 280 (Fla. 3d DCA 1968). Irrespective of the lack of stated reasoning in the order, the appellate court found that the reasoning was clear when reviewing the defendant’s motion for summary judgment, the plaintiff’s response, and the transcribed summary judgment hearing. (Remember, a summary judgment is reviewed on appeal with a de novo standard of appellate review.)

My guess is the transcribed summary judgment hearing was important and it underscores the importance of having a court reporter at a hearing for this purpose. If the trial court does not provide its reasoning in an order, it is not always clear what the reasoning is that led to the ruling. Having a court reporter at the hearing allows the appellate court to review the arguments raised at the hearing including any pronouncements by the trial court at the hearing.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Not All Non-Final Orders are Immediately Appealable

Posted by David Adelstein on July 30, 2017
Appeal / Comments Off on Not All Non-Final Orders are Immediately Appealable

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you receive a non-final order that you believe impacts rights and decisions moving forward, make sure to review Florida Rule of Appellate Procedure 9.130 regarding those immediately appealable non-final orders.

 

In a recent insurance coverage dispute (discussed here), the trial court declared that the insurer had a duty to defend its insured in a personal injury lawsuit.   This declaration was issued in response to a motion for summary judgment. But, the order granting the summary judgment was a non-final order. The trial court did not enter a judgment against the insurer and did not declare the insurer was obligated to indemnify its insurer. Instead, the trial court simply declared that the insurer had an obligation to defend its insured in the lawsuit based on the underlying allegations in the lawsuit. The insurer did not like this declaration from the trial court and appealed.

 

The Third District dismissed the appeal holding that the trial court’s order was not an appealable non-final order.   Just because the trial court issued an order granting an insured’s summary judgment does not in of itself make that an appealable final order. If there are no words of finality concluding the dispute, the order granting summary judgment is simply a non-final order.   In this case, all the trial court declared was that the insurer had a duty to defend – but there was no declaration regarding the duty to indemnify or regarding potential damages.  Hence, the appellate court did not have jurisdiction to entertain the immediate appeal of the non-final order.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Courts do Not Favor the Technical (Oops!) Wins

Posted by David Adelstein on July 09, 2017
Trial Perspectives / Comments Off on Courts do Not Favor the Technical (Oops!) Wins

Many rules of civil procedure are liberally construed to prevent the  “oops!” or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable / excusable basis to justify why the technical error occurred.   Courts want parties to prevail on the merits of their dispute and not on who wins a procedural error.

An example of this general philosophy is the case of Well Fargo Bank, N.A. v. Shelton, 42 Fla. L. Weekly D1526a (Fla. 5th DCA 2017), where the lender in a mortgage foreclosure action received requests for admissions, a common discovery tool to get a party to admit or deny certain facts. Those admissions of fact help narrow issues for purposes of trial because they narrow the facts in dispute since they serve as stipulated facts.  Based on these admissions, a party can move for summary judgment based on the lack of any genuine material fact in dispute.

The lender’s counsel, due to a calendaring error, failed to respond to the request for admissions for well over a year. During this time, discovery continued. The lender’s counsel realized the error (over a year later) and filed a motion in the court for the court’s permission to file a late response based on excusable neglect (the calendaring error). The lender also claimed that many of the requests in the requests for admissions would have been denied by evidence already in the record and filed with the lender’s verified complaint. After the lender filed this motion, the debtor moved for summary judgment arguing that the lender’s failure to timely respond to the request for admissions should be deemed an admission as to all of its requests. The court agreed and granted summary judgment (based on the technical error of not timely responding to the request for admissions). A technical win!

On appeal, the Fifth District reversed stating that Florida favors disputes to be decided on the merits rather than technical rules. In this case, the court found that even though the lender failed to respond to the request for admissions for well over a year, (1) discovery continued in the case, (2) there was evidence in the record contradicting some or all of the requests, (3) the debtor did not move for summary judgment until after the lender filed a motion for permission to file a late response, and (4) the debtor could not prove how it was prejudiced by the late admissions. Wells Fargo Bank supra (“In sum, the trial court erred in entering summary judgment based on the technical admissions because there was record evidence contradicting the admissions. In addition, the Sheltons failed to make a sufficient showing of how granting relief from the admissions would have caused prejudice.”) 

By no means am I in favor of committing or excusing technical errors, and by no means am I in favor of technical victories.  Waiting well over a year to try to respond to requests for admissions is ridiculous. (Also, the opposing party should have inquired as to the status of the admissions versus waiting over a year to try to obtain a technical victory.)  A calendaring error makes sense in this case because there really was no upside for the lender to not timely respond to these admissions – they were probably all easy denials. There was no strategic value to delay. But, over a year is a LONG time. And, the court provides no substantive discussion as to when a party is prejudiced by a technical error versus when a party is not. For instance, what if the debtor had moved for summary judgment before the lender realized it neglected to respond to the admissions? What if the parties were on a trial docket? What if the denials to the admissions were not so readily apparent from the record evidence? And, what if the debtor’s counsel tried to get the lender’s counsel to respond to the admissions months earlier?

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Posted by David Adelstein on June 18, 2017
Trial Perspectives / Comments Off on Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too.   This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because of seller’s remorse.  For instance, what if a seller of real property signs a deal to sell her property and then realizes she could have gotten some more money for the same property? Can she simply back out of the deal or proactively prevent certain conditions from occurring that are required to consummate the transaction? Is this type of bad faith accepted?

Head v. Sorensen, 42 Fla. L. Weekly D1380 (Fla. 2d DCA 2017) is a case that touches on seller’s remorse in the context of a seller of a condominium unit backing out of a signed deal and undertaking efforts to prevent conditions from occurring required to consummate the transaction.   The seller and buyer signed a purchase and sale contract for $405,000 with closing to occur 2 months later. A day or so later, the seller received a call from another owner in the condominium that told her that her sale price was too low and she could have gotten more money.  Based on this call, the seller signed a cancellation of contract and sent it to the buyer. The buyer refused to sign the cancellation and indicated his intent to close on the unit.

The purchase and sale contract provided that the sale was conditioned on the condominium association’s approval. This is not an uncommon rider to a purchase and sale contract. The buyer filed his application with the association for the requisite approval. However, the seller, because she wanted the deal to die, contacted the association and told them that she did not want to go through with the transaction and there were legal issues that that might prevent closing from taking place (although she never explained what those legal issues were). She also told the association to investigate the buyer’s ability to pay costs associated with the condominium. The association then rejected the contract based on the purported low sales price prompting the buyer to sue claiming, among other counts, breach of contract and specific performance.

The seller argued that the condition to closing—the association’s approval—did not occur so the buyer could not close on the unit.   The seller also creatively argued that the contract terminated by its own terms because there was a title defect (the association’s lack of approval) that rendered the title to the unit unmarketable and this defect was not cured.   The title commitment / defect provision is standard in real estate contracts that allows the buyer to notify the seller prior to closing of any title defects; the seller then has time to cure the title defects. If the seller cannot cure the defects after reasonable diligent effort, the contract terminates.

While the contract and closing was conditioned on the association’s approval, the problem was that the seller proactively assisted the association’s rejection of the buyer and deal, or proactively ensured that the condition would not occur. Naturally, the buyer’s title commitment reflected the association’s approval as a closing condition. The seller certainly didn’t go out of her way to ensure the association would approve the sale, which a seller would typically do when they have a buyer in place and a relatively short closing time. Had the seller sold the sale to the association, or not actively hindered the association from approving the buyer and transaction, the association probably would have approved the deal and any title defect would be removed.

Surprisingly, based on these facts, the trial court granted summary judgment in favor of the seller. On appeal, the Second District reversed stating:

When there are questions of fact as to whether one party to a contract has acted in bad faith by helping to procure an event that would cause the contract to terminate, summary judgment in favor of that party is improper….Here, such questions do exist. Therefore, Sorensen [seller] was not entitled to summary judgment in her favor on the issue of whether the contract terminated under the condominium rider, and the trial court erred by entering final summary judgment….

***

To limit the buyer to just the return of his deposit creates an incentive for the seller to dishonor the contract: “This seems to us to come perilously close to arguing that the sellers, after entering into a solemn agreement, could glibly dishonor it and restrict the buyer to regaining what was in practical effect already his, inasmuch as the transaction was not consummated and the sellers were therefore not entitled to the money.”… Creating an incentive for a seller to breach the contract is anathema to the law.

Head, supra, (internal citations omitted).

Seller’s remorse has consequences, particularly when the seller proactively ensures conditions associated with the deal do not occur.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Motion for Summary Judgment – No Genuine Issue of Material Fact

Posted by David Adelstein on May 21, 2017
Trial Perspectives / Comments Off on Motion for Summary Judgment – No Genuine Issue of Material Fact

A motion for summary judgment is a dispositive motion that is popularly filed before trial. However, it is a motion that is denied far more than it is granted because of the burden imposed on the party moving for summary judgment in order to prevail on the motion.  

Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Lin v. Demings, 2017 WL 1534824, *1 (Fla. 5th DCA 2017) quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006).   A motion for summary judgment is not designed to determine the credibility of a witness or even weigh the evidence; that is what trial is for. Id.

Think about the key issue moving for a summary judgment: “there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.”   The burden is on the party moving for summary judgment to establish that there is irrefutably no genuine issue of material fact. Lin, supra, at *1; ALX Maxim I, LLC v. Katsenko, 2017 WL 1683126, *1 (Fla. 2d DCA 2017). If there is a genuine issue of material fact, or even the slightest inference or doubt that a material factual issue exists, that doubt must be construed against the moving party and the motion denied. Id. quoting Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011); Lee County Department of Transportation v. The Island Water Association, Inc., 2017 WL 1403359, *2 (Fla. 2d DCA 2017).  This is why more motions are denied than granted. 

When drafting a motion for summary judgment, it is important that the party truly consider those material factual issues applicable to the legal argument supporting the summary judgment. For example, when drafting a summary judgment, I always have a solid understanding of the law I am going to be relying on. Based on this law, I focus on identifying those specific material facts relative to the issue. It is these facts that that will support the basis of the legal argument(s). A good motion for summary judgment is not an instantaneous motion. It requires time organizing and itemizing those specific facts and crafting legal analysis around those specific facts.   These facts will help determine whether moving for a final summary judgment or a partial summary judgment as to liability or damages or an issue in the case.  Plus, even if a party loses a motion, at a minimum, they want to be in position to inform the court about their case and theory.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein on January 29, 2016
Appeal, Expert Testimony / Comments Off on You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

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Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims.

For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims against the dealership he purchased his used vehicle from. During deposition, the expert was asked specific questions and answered that he had no expert opinions as to those questions/issues. The Defendants filed a motion for summary judgment. In response to the motion, the plaintiff filed an affidavit of his expert. The problem, however, was that the expert rendered opinions in the affidavit that contradicted with his deposition testimony. In other words, he rendered opinions in the affidavit as to issues he previously testified that he had no expert opinions on. The trial court struck the affidavit based on the law that “a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony.” Lesnik, supra, quoting Ondo v. F. Gary Gieseke, P.A., 697 So. 2d 921, 923 (Fla. 4th DCA 1997). The appellate court affirmed (explaining that reviewing trial court’s order striking the expert’s affidavit was an abuse of discretion standard of review and the trial court acted within its discretion).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Summary Judgment Must be Based on Admissible Evidence

Posted by David Adelstein on December 31, 2015
Evidence / Comments Off on Summary Judgment Must be Based on Admissible Evidence

 

A party moving for summary judgment must rely on admissible evidence in the record. Arlen Realty, Inc. v. Penn Mut. Life Ins. Co., 386 So.2d 886 (Fla. 1st DCA 1980).

Parties oftentimes submit an affidavit in support of a motion for summary judgment in order to get certain testimony or documentary evidence into the record. When a party submits an affidavit to get a document into the record, the party still needs to authenticate the document and lay its foundation in the affidavit. See Alavi v. Garcia, 140 So.3d 1141 (Fla. 5th DCA 2014) (party required to lay foundation for promissory note in summary judgment affidavit); Bryson v. Branch Banking and Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011) (unauthenticated default letters were insufficient for summary judgment consideration); Southern Developers & Earthmoving, Inc. v. Caterpillar Financial Services Corp., 56 So.3d 56 (Fla. 2d DCA 2011) (trial court properly disallowed letter on summary judgment that was not authenticated); Mitchell Bros., Inc. v. Westfield Ins. Co., 24 So.3d 1269 (Fla. 1st DCA 2009) (affidavit with schedule of payments to support damages was insufficient for consideration on summary judgment as the schedule of payments was hearsay and the business records exception to the hearsay rule was not established); Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984) (party relying on blood tests should have submitted affidavit (i) of record custodian of blood tests to support business records exception to the hearsay rule or (ii) of the technician that performed the blood tests).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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