10 Fla. L. Weekly Supp. 679a
Insurance — Appeals — Where issue of standing based on purported invalidity of assignment was directly raised on appeal, and issue of whether policy was assignable was only raised by mention in statement of facts, court could have considered the issue of transferability of policy waived but was not required to do so — Evidence — Trial court’s denial of admissibility of affidavit on ground that there was issue as to whether affiant had personal knowledge is affirmed where, even if ruling was close call, there is no demonstrated prejudice because decision is order denying summary judgment
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, vs. RICHARD R. SHAKER, D.C., P.A., Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-5390. Division X. L.C. Case No. 01-15888-SC-H. July 2, 2003. Sam D. Pendino, Judge. Counsel: Michael C. Clarke, St. Petersburg, for Appellant. Timothy A. Patrick, Tampa, for Appellee.On Motion for Clarification[Original Opinion at 10 Fla. L. Weekly Supp. 85a (withdrawn)Order on Appellant’s Motion for Rehearing at 10 Fla. L. Weekly Supp.478a]
This matter came before the Court on Appellant’s timely Motion for Rehearing/Clarification.
Appellant contends that this Court addressed issues not raised on appeal. The first issue raised on appeal was that of standing, based on the purported invalidity of the assignment. Appellant is correct that its argument addressed only the validity of the assignment as it related to the alleged assignor’s intent to assign his benefits. However, in its initial brief, Appellant stated in its facts:
“On motion for summary judgment METROPOLITAN argued that the plain language of its policy prohibited its assignment without METROPOLITAN’s written consent. . .” (R. 145-154).
Because it is this Court’s conclusion that the executed document itself was demonstrative of the assignor’s intent, we considered the policy language to determine whether the policy was assignable in the first place to ensure that the parties had the benefit of this Court’s full review. If, as Appellant asserts, the transferability of the policy was not an issue, it need not have been included in the facts. Statements of fact should be comprehensive, but should not contain extraneous facts that are unrelated to the issues. See, Padovano, Florida Appellate Practice, 2003 Ed., p. 252.
Although Appellant correctly states that the Court may consider omitted items as waived, it does not follow that the Court must do so. The transferability of the policy, which policy was contained in the record, relates to the validity of the assignment, which was, generally, an argument before this Court.
As a second point, Appellant requests a rehearing on our decision regarding the admissibility of the affidavit of Ms. Green. In our opinion we stated that although it appeared to be a technical error, it was harmless, a conclusion based upon our misunderstanding of the timing of Appellee’s dismissal of the contested claims, specifically, that the claims to which Appellant referred had been dismissed prior to the summary judgment. However, we stand by our affirmance of the trial court’s decision on the issue. In the trial court’s order on motion for summary judgment, it stated that the affidavit was denied because there was an issue as to whether affiant had the requisite personal knowledge. Florida Rule of Civil Procedure 1.510(e) requires personal knowledge of the affiant for an affidavit to be admissible. Additionally, the trial court has broad discretion over evidentiary decisions. Forester v. Norman Roger Jewell & Brooks Intern., 610 So.2d 1369 (Fla. 1st DCA1992). Even close calls must be affirmed in the absence of demonstrated prejudice. Perdue Farms Inc. v. Hook, 777 So.2d 1047, 1051 (Fla. 2d DCA 2001). Even if this were a close call, the trial court’s decision is an order denying Appellant’s motion for summary judgment, therefore, its decision was not dispositive of the substantive issues. Rather, it was to have led to an evidentiary hearing. That a party must go to trial, rather than obtain summary judgment, does not constitute prejudice. Public Health Trust of Dade County v. Diaz, 529 So.2d 682 (Fla. 1988), citing R.J. Brown, Inc. v. Seminerio, 246 So.2d 629 (Fla. 4th DCA 1971) (incurring expenses for representation at unnecessary trial is not a “material injury”). That the opposing party withdrew the claims after the expiration of an offer of settlement does not enter into our decision; it occurred after the trial court’s decision, if it occurred at all.1 Appellant did not overcome the heavy burden necessary to reverse a trial court’s evidentiary decision. We note that Appellant may not even be foreclosed from moving for attorney’s fees for time spent litigating those claims prior to their dismissal, provided it complies with certain procedural requirements. It is therefore
ORDERED that Appellant’s motion for clarification is GRANTED and this Court’s opinion is AFFIRMED. (Simms, J., concurs.)
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1The Court was unable to verify whether Plaintiff below formally took a voluntary dismissal of the remaining claims. Counsel stated an intention to do so with prejudice in the summary judgment hearing, but there is no recorded dismissal of the claims.
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(Barton, J., concurring, with opinion.) I agree the Final Judgment should be affirmed, but for reasons different from those expressed in the majority opinion. As to the alleged error in failing to grant Appellant’s motion for summary judgment, my review of the record supports the trial court’s finding that disputed issues of material fact precluded the granting of Appellant’s motion. Accordingly, the trial court correctly denied Appellant’s motion for summary judgment.
As to whether summary judgment was proper, Appellant confessed judgment on the only remaining claim. Thus, the fact that the court failed to consider the affidavit of an insurance representative submitted on behalf of Appellant for its motion for summary judgment, while a technical error, was harmless.
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