Trial Court Erred by Weighing Credibility of Expert’s Affidavit on Summary Judgment

In this case involving a slip in fall at a condominium, the Plaintiff sought to prove negligence of the Condominium Association through an expert who opined on the length of time an elevator oil leak existed based on the depth of the oil puddle. Defendant filed a Motion for Summary Judgment arguing it did not have notice of the oil leak.

Regarding Plaintiff’s expert, the trial court stated: “[h]is opinion was weak, and could only state that the leak was possibly long term. This leaves open that other possibilities are equally as likely.”

The trial court found that their was no material facts in dispute regarding the length of time the leak was present and granted summary judgment for the Defendant. On appeal, the Second DCA overturned summary judgment stating:

“the trial court explicitly weighed witness credibility by finding that Dr. Benedict’s affidavit ‘lacked credibility &/or reliability.’ The court also speculated about McNabb’s chance of success by finding that Dr. Benedict’s ‘opinion was weak.'”

The Second DCA, did note that:

“the trial court is not required to consider affidavits that are not based upon personal knowledge or are devoid of evidentiary support.” Citing See Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 980 (Fla. 2d DCA 2001); Howard v. Boulanger Drywall Corp., 23 So. 3d 817, 819 (Fla. 4th DCA 2009).

Here, however, the Second DCA stated that the expert’s affidavit was based on his personal knowledge and therefore the trial court erred by discounting the expert’s affidavit.

Jonathan McNabb v. Bay Village Club Condominium Association, Inc., Case No. 2D15-5613 (Fla. 2D DCA March 29, 2017).



Summary Judgment overturned on finding that material facts in dispute

The case involves the appeal of final summary judgment in a suit for civil forfeiture of $2,470.00.  The currency was seized based on allegations that the currency’s owner (“Owner”) sold cocaine.

The City served the Owner with Requests for Admissions that went unanswered.  The City then filed a Motion for Summary Judgment in which it took the position that the Owner was deemed to have admitted the facts in the unanswered Request for Admissions.  The trial court granted the summary judgment motion.

On appeal, the Second DCA overturned the trial court’s order, finding:

Although a court normally has discretion to rely on a technically deemed admission to support a summary judgment, it is error to do so if the record contains evidence contradicting the admission. Walker v. City of Bartow Police Dep’t (In re Forfeiture of 1982 Ford Mustang), 725 So. 2d 382, 385 (Fla. 2d DCA 1998); see also Mahmoud v. King, 824 So. 2d 248 (Fla. 4th DCA 2002) (holding, and citing like cases that hold, summary judgment is not proper based on a failure to respond to requests for admissions when the record otherwise reveals disputed issues of material fact).

In re forfeiture of: $2470.00 in U.S. Currency, Case No. 2D13-6217 (Fla. 2nd DCA May 8, 2015).



Serving Privilege Log After Denial of Protective Order

In this insurance case, the trial court denied State Farm’s motion for protective order.  On Appeal, State Farm argued that the trial court should have conducted an in-camera review or addressed the objections to the discovery.  The appellate court affirmed on the basis that State Farm’s argument was premature, because “the general denial of State Farm’s motion was equivalent to a determination that all of the documents were ‘otherwise discoverable.’  At that point, State Farm’s claims of privilege and protection under the work product doctrine became mature,” thus giving State Farm the right to file a privilege log to protect any applicable privileges.  Thus, the appeal was premature in the absence of the trial court’s determinative ruling on the privilege issues.

State Farm v. Coburn, 39 Fla. L. Weekly D334b (Fla. 2d DCA Feb. 12, 2014).

No Discovery After Settlement

In this foreclosure case, certain borrower-defendants stipulated to a deficiency judgment, while one defendant did not. The non-settling defendant prevailed at trial on the basis that the lender lacked standing to pursue the debt. The other defendants then sought to set aside their stipulated settlement agreement, and sought a deposition and other discovery from the lender while the motion to set aside remained pending. The trial court allowed the discovery, and the appellate court reversed, holding: “The parties reached a settlement and stipulated to a deficiency judgment. Although the respondents have moved to set aside their stipulation, the trial court has not ruled on the motion. Therefore, the settlement and stipulation remain in effect and bar any further discovery.”

Eagle FL VI SPE, FL v. BB&T, 39 Fla. L. Wkly D48a (Fla. 2d. DCA Dec. 27, 2013)



Improper to Enter Dismissal with Prejudice on Motion to Amend Complaint

In this medical malpractice case, the Plaintiff sought to file an Amended Complaint to, in part, add additional Defendants, which were referred to as the “Potential Defendants.”  The Potential Defendants, through counsel, made an appearance in the case and opposed the Motion to Amend on the grounds that the statute of limitations had run on the claims being asserted in the proposed Amended Complaint.  The trial court agreed that the statute of limitations had run and entered an order denying the Motion to Amend “with prejudice.”  The Plaintiff treated the trial court’s order as a final order and appealed.

On appeal, the Second DCA, sua sponte, recognized that the trial court’s ruling on the Motion to Amend was not a final order and therefore was not appealable.  The Second DCA treated the appeal as a petition for writ of certiorari.

The Second DCA found that the trial court’s entry of an order reaching the merits of the claims in the Amended Complaint was improper. “Florida Rule of Civil Procedure 1.210(a) does not recognize any category known as “potential defendant.” The fact that a proposal to amend a complaint, if granted and served upon a person, creates an “interest adverse to the plaintiff” does not make the person a party prior to the amendment.”   Until and unless the Motion to Amend was granted, the trial court could not reach the merits of claims against the Potential Defendants.

Instead, the trial court should have granted the Motion to Amend.  Once granted, the Potential Defendants would become defendants and the trial court could dismiss the case on a properly filed motion to dismiss.

ZAFFUTO v. ST. JOSEPH’S HOSPITAL, 38 Fla. L. Weekly D2280a (Case No. 2D13-456 Nov. 1, 2013)

Personal Jurisdiction Over Judgment Debtor Not Necessary to Domesticate Foreign Judgment

A judgment creditor sought to domesticate and enforce a foreign judgment in Florida.  The judgment debtor challenged enforcement on the grounds that Florida lacked personal jurisdiction over the judgment debtor.  The Second DCA determined that the judgment could be domesticated in Florida regardless of whether Florida had personal jurisdiction over the judgment debtor.  In the context of domesticating a judgment, whether Florida had personal jurisdiction over judgment debtor was irrelevant.  The judgment debtor could challenge domestication if the foreign court lacked personal jurisdiction over the judgment debtor, not if Florida lacked personal jurisdiction.

Stocker v. Stocker, 38 Fla. L. Weekly D1968a (Case No. 2D12-4980 Sept. 18, 2013)

Loan Servicer May Verify Foreclosure Complaint

In this residential foreclosure case, the trial court dismissed an amended complaint whose verification was signed by a person on behalf of “Wells Fargo Bank, N.A. as contractual servicer for US Bank National Association.”  Applying Florida Rule of Civil Procedure 1.110(b), the appellate court reversed, holding: “A problem with the required verification arises from the fact that an entity like US Bank cannot sign a verification or an affidavit as ‘I.’ Most foreclosure actions are filed by commercial entities with numerous employees, agents, or independent contractors. As a result, some human being must sign the verification stating “’I declare . . . .'”  In so holding, however, the appellate court stated further that “we are not holding that a trial court lacks the authority to require a plaintiff in a foreclosure action to provide additional information concerning the person signing the verification.”

US Bank v. Marion, 38 Fla. L. Weekly D1788a (Fla. 2d DCA Aug. 21 2013)

Error to enter Summary Judgment while discovery pending – Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC

Bayview Loan filed a commercial foreclosure action against Almond and later moved for summary judgment.  At some point, it is not clear whether it is before or after the MSJ was filed, Almond moved to compel the deposition of Bayview’s corporate representative.  It is also unclear whether that motion to compel was ever ruled on.

Almond informed the trial court of the outstanding discovery in its memorandum in opposition to summary judgment.  However, the trial court entered summary judgment without Almond having taken the deposition of Bayview’s corporate rep.

The Second DCA found that “the facts had not been sufficiently developed” and overturned the entry of summary judgment.

Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC, 37 Fla. L. Weekly D2353a (Fla. 2d DCA Oct. 5, 2012)

Denial of Fee Award Due to Insufficient Expert Testimony – Raza v. Deutsche Bank

In this foreclosure case, the trial court dismissed the lender’s case for failure to comply with a court order.  The borrower, Raza, moved for prevailing party attorneys’ fees under a flat-fee agreement.  The trial court denied the motion because the expert affidavit failed to state a reasonable number of hours incurred in the case.  The appellate court affirmed, holding, “We have no transcript of the fee hearing, the order on review is not facially erroneous, and Mr. Raza’s proof failed to demonstrate a reasonable fee.”

Raza v. Deutsche Bank, 37 Fla. L. Wkly D2243c (Fla. 2d DCA Sept. 1, 2012)