summary judgment

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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Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

Posted by David Adelstein on December 04, 2015
Depositions / Comments Off on Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

 

Speculative and inadmissible testimony should not be considered on a summary judgment.

This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015).  In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am.   He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have done nothing to cause or avoid the accident.

The estate of the decedent filed a wrongful death action (founded in negligence). The defendants moved for summary judgment based on the undisputed evidence. The plaintiff-estate responded based on inadmissible and speculative evidence of the decedent’s folks.   The trial court granted summary judgment and the appellate court affirmed. In affirming, the appellate court gave a great discussion of summary judgments, particularly summary judgments involving negligence actions:

 

In a negligence action, summary judgment is improper [u]nless a defendant can establish unequivocally the absence of negligence[ ] or that the plaintiff’s negligence was the sole proximate cause of the injury. The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. Once the moving party has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a colorable issue of material fact.

***

The estate relied solely on the deposition testimony of Panzera’s [decedent’s] parents, wherein they surmised that O’Neal [semi-tractor’s driver] could have avoided the accident had he taken additional evasive maneuvers and that therefore he must not have been able to see Panzera before the collision occurred. Their conclusions were based only on their personal review of the scene after the accident. The Panzeras admitted that they do not have experience in accident reconstruction and were not present at the time of the accident. Therefore, their bare allegations of negligence are purely speculative lay opinion testimony, which was not admissible evidence and cannot be relied on to create a material issue of fact.

Panzera, supra (internal quotations and citations 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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De Novo Appellate Standard Of Review For Summary Judgments

Posted by David Adelstein on December 14, 2014
Appeal, Standard of Review / Comments Off on De Novo Appellate Standard Of Review For Summary Judgments

De Novo Appellate Standard

An appellate court’s standard of review when reviewing a trial court’s summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000); accord L’Etoile Homeowners Ass’n, Inc. v. Fresolone, 940 So.2d 1170 (Fla. 4th DCA 2006). A de novo standard of review means that the appellate court will examine the trial court’s record anew and will rule on the record evidence and law without giving any deference to the trial court. This is a favorable standard of review for an appellant (party appealing trial court’s ruling) because there is no deference afforded to the trial court’s findings.

As explained by the Fifth District Court of Appeal:

In order to determine the propriety of a summary judgment, a reviewing court should determine whether there is any genuine issue regarding any material fact and whether the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact. On appeal, a reviewing court should consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the nonmoving party. If the slightest doubt exists, of course, summary judgment must be reversed.

Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So. 2d 695, 697-98 (Fla. 5th DCA 2006) (internal citations 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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