45 Fla. L. Weekly D1091b

Insurance — Homeowners — Summary judgment — Breach of contract claim by insured against insurer — Trial court erred in denying insurer’s motion for summary judgment where insured presented no evidence of insurer’s breach of insurance contract, insurer met its initial burden of demonstrating the nonexistence of any genuine issue of material fact, and insured failed to come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. RAFAEL VELEZ, Appellee. 3rd District. Case No. 3D18-0444. L.T. Case No. 15-17436. May 6, 2020. An Appeal from the Circuit Court for Miami-Dade County, John W. Thornton, Jr., Judge. Counsel: Simon, Reed & Salazar, P.A., and Jennifer V. Ortega, and Paige B. Segrera, and Michael Simon; Russo Appellate Firm, P.A., and Elizabeth K. Russo, for appellant. The Monfiston Firm, P.A., and Daniel L. Monfiston, for appellee.

(Before FERNANDEZ, LINDSEY, and HENDON, JJ.)

(LINDSEY, J.) United Services Automobile Association (“USAA”) appeals a final judgment in favor of Rafael Velez, entered after the trial court granted summary judgment in favor of Velez on his single-count complaint for breach of contract. USAA contends the trial court erred because, based on the undisputed facts, USAA was entitled to final summary judgment. We agree and reverse for entry of judgment in favor of USAA on its motion for summary judgment.

I. BACKGROUND

Velez owns a home in Homestead, Florida insured by USAA. On April 16, 2015, he filed a claim for water damage due to a failed toilet wax ring in one of the bathrooms. Throughout May of 2015, USAA attempted to work out the scope of the repairs with Velez’s designated loss consultant. Unable to get a response, USAA provided its own assessment of the scope and cost of the necessary repairs to Velez’s loss consultant on May 5, 2015.

On July 1, 2015, still having heard nothing from Velez’s loss consultant, USAA sent Velez its estimate, indicating the rooms and items it determined needed to be repaired and the assessed cost of repair. USAA enclosed a check for $20,915.94, which represented the full amount of the cost of the repairs less Velez’s $500.00 deductible. The cover letter enclosed with the estimate and check advised Velez that mediation under the Florida Department of Financial Services’ mediation program was available if he wanted to use mediation to attempt to resolve any differences over the amount of loss. USAA also sent a letter to Velez’s counsel on July 1, 2015, advising that USAA’s loss assessment and check for $20,195.94 were being provided and stating that “in light of our inability to receive a reply to our loss assessment provided to your loss consultant, Luis Gomez, on May 5, 2015 . . . we will invoke the appraisal clause in the member’s policy . . . .” The letter named USAA’s appraiser and provided his contact information.

Velez responded on July 30, 2015, by filing suit for breach of contract and seeking damages, prejudgment interest, costs, and attorney’s fees under section 627.428, Florida Statutes.¹ Velez alleged USAA failed to adequately compensate him because USAA did not “initially pay at least the actual cash value” of the loss pursuant to section 627.7011(3)(a), Florida Statutes. Velez did not allege what he claimed the “actual cash value” to be.

In response, USAA moved to compel appraisal and abate the case or, alternatively, to dismiss the complaint. In furtherance thereof, USAA sent Velez’s counsel a letter requesting that Velez agree to comply with USAA’s invocation of the appraisal provision and enclosing a proposed agreed order compelling appraisal. Velez did not respond to USAA’s letter or its motion.²

USAA then filed a motion for sanctions pursuant to section 57.105, Florida Statutes, on the basis that Velez lacked the material facts to support his breach claim and had refused to comply with his contractual obligation to participate in the appraisal process. USAA’s motion was set for hearing along with USAA’s motion to compel appraisal. However, on the day before the hearing, Velez’s counsel agreed to submit to appraisal, abate the action, and cancel the hearing set for the next day. Accordingly, the trial court entered an agreed order compelling appraisal and abating the case pending completion thereof. On June 13, 2016, the appraisal panel issued an award in favor of Velez in the amount of $28,316.36.³ After accounting for the prior payment and the deductible, USAA owed Velez an additional $6,900.42 on the appraisal award. USAA paid this amount on July 12, 2016.

On September 19, 2016, USAA filed a motion entitled Defendant’s Motion for Entry of Final Order of Dismissal with Prejudice and Order Instructing the Clerk to Administratively Close the Court File and/or Motion for Summary Judgment (“USAA’s Motion for Summary Judgment”). In response, Velez argued that there was additional evidence to be considered and that he was entitled to attorney’s fees. The trial court deferred ruling on USAA’s Motion for Summary Judgment to allow Velez time to file a motion for attorney’s fees. Instead, Velez filed a motion entitled: Plaintiff’s Motion for Confirmation, Summary Judgment, and Attorney’s Fees Pursuant to Florida Statute 627.428 (“Velez’s Motion for Summary Judgment and Attorney’s Fees”). Despite the title, Velez only argued that he was entitled to attorney’s fees. Moreover, Velez failed to provide any evidence contradicting the undisputed facts upon which USAA’s Motion for Summary Judgment was based.

The trial court ruled in favor of Velez and entered an order granting Velez’s Motion for Summary Judgment and Attorney’s Fees. In so doing, the trial court explained:

Defendant argued that fees should not be awarded because Defendant agreed to appraisal immediately, and therefore there was no need for Plaintiff to have retained counsel and incurred fees. That issue shall be considered and addressed and in the context of the amount of fees to which Plaintiff is entitled.

The trial court denied rehearing without explanation.

Thereafter, USAA sought to obtain Velez’s counsel’s time records and invoices for costs to no avail. On October 19, 2017, USAA filed a motion for a case management conference, advising the court of Velez’s failure to respond to USAA’s fee discovery and seeking a schedule for Velez to comply. Thereafter, USAA submitted, and the trial court entered, an agreed order for Velez to provide the discovery USAA had sought. Instead of providing the discovery he had agreed to provide, Velez filed a motion entitled: “Plaintiff’s Motion for Order of Final Judgment” wherein he argued that USAA had confessed judgment thereby entitling Velez to attorney’s fees. Over USAA’s objection, the trial court entered a final judgment in favor of Velez in the amount of zero dollars and reserved jurisdiction “to consider all pending or forthcoming motions [for] amount of attorney’s fees, costs, and/or interest” (the “Final Judgment”). The trial court expressly stated it was entering the Final Judgment pursuant to its prior order granting Velez’s Motion for Summary Judgment and Attorney’s Fees.

This timely appeal followed.

II. STANDARD OF REVIEW

Orders granting final summary judgment are reviewed de novo. Siegel v. Tower Hill Signature Ins. Co., 225 So. 3d 974 (Fla. 3d DCA 2017). The trial court’s entry of a judgment for zero dollars in favor of Velez is purely a matter of law such that the standard of review is also de novo. Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla. 2010) (“Because this is a pure question of law, our standard of review is de novo” (citing S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So. 2d 317, 319 (Fla. 2005); D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)).

III. ANALYSIS

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. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). We explained the shifting burdens of proof applicable to summary judgment in Siegel:

Summary judgment is proper under Florida Rule of Civil Procedure 1.510(c) where “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.” Arce v. Wackenhut Corp., 40 So. 3d 813, 815 (Fla. 3d DCA 2010). The movant bears the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Id. (citing Valderrama v. Portfolio Recovery Assocs., LLC, 972 So. 2d 239 (Fla. 3d DCA 2007)). “Once competent evidence to support the motion has been tendered, the opposing party must come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact.” Arce, 40 So. 3d at 815 (emphasis in original) (citing Fla. R. Civ. P. 1.510; Michel v. Merrill Stevens Dry Dock Co., 554 So. 2d 593, 596 (Fla. 3d DCA 1989)).

225 So. 3d at 977.

In its Motion for Summary Judgment, USAA sought summary judgment on the basis that it was undisputed that USAA timely investigated the claim and sent its estimate to Velez, that Velez neither responded nor objected to the estimate, and that USAA issued payment for the claim based on this estimate. Further, USAA contended it was undisputed that at the time USAA issued payment and invoked the appraisal provision of the policy, it still had not received a response from Velez. In addition, USAA contended Velez, after filing suit, agreed to proceed with appraisal and abate the action. Finally, USAA asserted it was undisputed that USAA timely paid the appraisal award and, at that point, had satisfied all its obligations under the policy.

At the hearing on USAA’s Motion for Summary Judgment, USAA asserted there was nothing left for the court to determine because the appraisal award had already been paid, thereby satisfying USAA’s obligation under the insurance policy; Velez agreed.⁴ While conceding there remained no substantive issues to be adjudicated, Velez argued there was additional evidence to be considered and that he was entitled to attorney’s fees. When the trial court continued the hearing and afforded Velez the opportunity to file a motion for attorney’s fees with this additional evidence, Velez instead filed his Motion for Summary Judgment and Attorney’s Fees. No sworn affidavits, deposition transcripts, or evidence of any kind accompanied this motion. Velez neither argued that USAA had breached the insurance contract nor presented any evidence in opposition to USAA’s Motion for Summary Judgment. Rather, Velez devoted the entirety of his argument to a discussion about his entitlement to attorney’s fees.

On appeal, USAA contends the trial court erred in failing to grant its Motion for Summary Judgment. We agree. Once USAA met its initial burden of demonstrating the nonexistence of any genuine issue of material fact, Velez was required to come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact; he failed to do so. See, e.g., Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-83 (Fla. 1965) (“If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result-that is, evidence sufficient to generate an issue on a material fact.” (citations omitted)).

Here, Velez failed to present any evidence of USAA’s breach of the insurance contract. The undisputed evidence shows that USAA fully complied with the policy in paying Velez’s claim. Indeed, Velez conceded this point on the record. Because there were no material facts in dispute and because Velez had put forth neither opposition to USAA’s Motion for Summary Judgment nor any evidence otherwise in support of his single claim for breach of contract, USAA’s Motion for Summary Judgment should have been granted. See Fort Walton Beach Lincoln-Mercury, Inc. v. Pearson, 731 So. 2d 859, 861 (Fla. 1st DCA 1999) (reversing and remanding summary judgment in favor of plaintiff because the undisputed facts and the law of contracts showed that defendant was entitled to summary judgment); see also World Fin. Group, LLC v. Progressive Select Ins. Co., 45 Fla. L. Weekly D120 n.6 (Fla. 3d DCA Jan. 15, 2020) (“We may remand for entry of summary judgment when there were cross motions for summary judgment filed below.” (citing Indep. Mortg. & Fin., Inc. v. Deater, 814 So. 2d 1224 (Fla. 3d DCA 2002)).

On appeal, Velez’s answer brief, much like his Motion for Summary Judgment and Attorney’s Fees, is devoted to arguments in support of his contention that he is entitled to attorney’s fees. However, the order granting Velez’s entitlement to fees is not before us on appeal. Moreover, we would be without jurisdiction to consider that order because the amount has not yet been determined, thus precluding appellate review.⁵ See, e.g., Acosta v. Tower Hill Signature Ins. Co., 245 So. 3d 882 (Fla. 3d DCA 2018) (“Because the order granting [Appellee’s] entitlement to attorney’s fees and costs . . . did not establish an amount, it was a non-final, non-appealable order that is not ripe for our review.”); Low Key Ltd., Inc. v. Annesser, 128 So. 3d 35 (Fla. 3d DCA 2012) (“Because the order determines that [the appellee] is entitled to fees but does not determine the amount, it is a nonfinal order not yet ripe for appellate review.” (alteration in original) (quoting Rhodes v. Newport Bldg. & Constr., Inc., 86 So. 3d 1245, 1247 (Fla. 2d DCA 2012))). Thus, we express no opinion as to the issues and arguments Velez raised on appeal related to his entitlement to attorney’s fees.

IV. CONCLUSION

For the reasons set forth above, we reverse and remand for the trial court to enter final judgment in favor of USAA on its Motion for Summary Judgment because the undisputed facts established that USAA did not breach the insurance contract.

Reversed and remanded.

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¹Velez initially named and served the wrong USAA entity but later amended the complaint and filed a voluntary dismissal of the incorrect party. The correct USAA entity was served on August 20, 2015.

²USAA also filed a motion for protective order and for stay of Velez’s outstanding discovery requests in light of the pending motion to compel appraisal, both of which the trial court granted over Velez’s objection.

³It should be noted that the appraisal panel found the amount of loss was $28,316.36 in actual cash value and replacement cost value.

⁴More specifically, at the hearing, counsel for Velez stated:

I think the matter is ripe to be closed. I think — but I disagree as to whether there is nothing for the court to determine. . . . The main issue is: Did the insurance company pay? Yes. Is there any other substantive matter to be litigated? No. But the issue is: Is my — is the insured entitled to attorney’s fees based off of not only just the litigation, but the fact that this excess amount was determined by way of appraisal? We believe that answer is yes.

⁵This Court held this appeal in abeyance for over eight months to allow the parties to litigate and for the trial court to enter a final judgment determining the amount of attorney’s fees due to Velez. During this time, as per this Court’s orders, the parties have prepared monthly status reports indicating various reasons why this has not been accomplished.