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).

 

 

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)

UNITED AUTOMOBILE INS. CO. v. PETER F. MERKLE, M.D., P.A., 35 Fla. L. Wkly D620a (Fla. 4th DCA Mar. 17, 2010)

In this insurance coverage dispute, the circuit court affirmed a county court judgment against the insurer on the basis that its opposing summary judgment expert affidavit contained “technical defects” (which are not identified in the opinion).  The Fourth District reversed because summary judgment may not be granted by reason of a technical defect in an affidavit unless the appellate court first provides leave to amend the affidavit, if requested by the non-movant.

UNITED AUTOMOBILE INS. CO. v. PETER F. MERKLE, M.D., P.A., 35 Fla. L. Wkly D620a (Fla. 4th DCA Mar. 17, 2010)

Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008)

In another foreclosure case gone wrong, which is becoming a trend in the appellate decisions of late, the Second DCA overturns the trial court’s entry of Summary Judgment where the hearing transcript “does not reflect that the trial court considered the affidavit of [a third party] that called into question the validity of the note and mortgage.”

The decision does not address the trial court’s order, but, presumably, the Summary Judgment Order also did not address the affidavit.

State Farm Fire and Casualty Co. v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009)

In this car accident case involving insurance coverage, two plaintiffs in separate companion cases moved for summary judgment against the insurer.  The trial court held hearings on the first plaintiff’s motion and granted it.  As for the second plaintiff, the court granted the motion a week later, but without holding a separate hearing.  The appellate court reversed, holding that “[a] trial court’s failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard.”

State Farm Fire and Casualty Company v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009)

Tarik, Inc. v. NNN Acquisitions, Inc., 34 Fla. L. Wkly D1977 (Fla. 4th DCA Sept. 30, 2009)

Entry of Summary Judgment order pursuant to Fla. R. Civ. Pro. 1.510, in case seeking possession
of real property, by itself, is not an appealable, non-final order as set forth
in Fla. R. App. Pro. 9.130(a)(3)(c)(ii) because the Summary Judgment order did not
provide for the “immediate” right to possession of the property.

The Trial Court reiterated that Summary Judgment is “interlocutory in
character” as it does not automatically result in the entry of final
judgment.

Tarik, Inc. v. NNN Acquisitions, Inc., 34 Fla. L. Wkly D1977 (Fla. 4th DCA Sept. 30, 2009)

Ginsberg v. Northwest Medical Center, Inc., Jason Perelman, M.D., Mitchell Weinstein, D.O., and Uro-Medix, Inc., 34 Fla. L. Weekly D1349a (Fla. 4th DCA July 1, 2009)

In a medical malpractice case, a defendant medical center obtained a summary judgment based upon a pre-surgery consent form that the plaintiff had signed.  The appellate court reversed because the defendant did not provide a sufficient business record foundation for the form.  The defendant would be permitted to attempt to establish a sufficient foundation on remand, however.

Ginsberg v. Northwest Medical Center, Inc., Jason Perelman, M.D., Mitchell Weinstein, D.O., and Uro-Medix, Inc.

Florida Rules of Civil Procedure 1.510