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Affidavit Used to Support or Defend Against Summary Judgment

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact.  A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay.  The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate.   This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are...

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Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Does an uneven floor level, in of itself, support a premise liability claim?  No!  Uneven floor levels are not so uncommon.  The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor.  A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit.   The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not...

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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...

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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 evidence to 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...

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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...

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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...

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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...

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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....

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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...

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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....

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