15 Fla. L. Weekly Supp. 964a
Insurance — Personal injury protection — Judgment on pleadings — Trial court erred in considering matters outside pleadings when granting judgment on pleadings in favor of insurer — Tipsy coachman doctrine cannot be applied to affirm decision as summary judgment where medical provider was not given notice that summary judgment would be considered or opportunity to present evidence establishing existence of genuine issue of material fact
PROSPER DIAGNOSTIC CENTER, a/a/o NANCY BARRERO, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-376 AP. L.C. Case No. 06-1909 SP21. August 21, 2008. On Appeal from the County Court in and for Miami-Dade County, Ana Maria Pando, Judge. Counsel: Stuart B. Yanofsky, for Appellant. Ivy R. Ginsberg, Office of the General Counsel, for Appellee.
(Before WARD, VENZER, THORNTON, JJ.)
(THORNTON, Judge.) The issue presented by this appeal is whether the trial court erred in considering matters outside the pleadings when granting judgment on the pleadings, and, if error, whether the “tipsy coachman” doctrine can properly apply to the decision of the trial court by allowing it to be affirmed as a summary judgment.
We hold that the trial court erred in considering matters outside the pleadings, and that the tipsy coachman doctrine does not apply in the instant case. We therefore reverse the final judgment entered in favor of United Automobile Insurance Company.
The material facts for purposes of this appeal are not in dispute. Nancy Barrero was injured in an automobile accident, and received medical treatment and services from Appellant Prosper Diagnostic Center (“Prosper Diagnostic”). Pursuant to an assignment of benefits from Ms. Barrero to Prosper Diagnostic, the medical bills were sent for payment to her insurer, United Automobile Insurance Company (“United”). When United refused to pay the bills, Prosper Diagnostic sued United on April 7, 2006. United filed an answer and affirmative defenses.
United propounded Interrogatories, Requests for Production, and Requests for Admission on July 5, 2006. Prosper Diagnostic timely responded to the Interrogatories and Requests for Production, but failed to respond to the Requests for Admission.
On February 28, 2007, the trial court conducted a pretrial conference and set the case for trial. In accordance with the trial court’s order, United filed a pretrial catalogue identifying its witnesses and exhibits, but did not include in its pretrial catalogue, nor otherwise raise the unanswered Requests for Admission. Neither party requested summary disposition of the lawsuit.
On the day of the scheduled trial, United made an ore tenus motion for judgment on the pleadings, arguing that the Requests for Admission were now deemed admitted pursuant to Fla. R. Civ. P. 1.370. The trial court examined the record, including documents outside the pleadings, and determined that the allegations in the pleadings did not contradict the technical admissions made by Prosper Diagnostic. The court entered judgment on the pleadings in favor of United. This appeal followed.
A motion for judgment on the pleadings raises only questions of law, and a trial court’s ruling on such a motion is subject to de novo review on appeal. Boatwright Const. LLC v. Tarr, 958 So. 2d 1071, 1072 (Fla. 5th DCA 2007) and cases cited therein.
Prosper Diagnostic correctly argues that a judgment on the pleadings must be limited to a review of the pleadings, and the trial court may not consider matters outside the pleadings. Martinez v. Lieberman, 920 So. 2d 128 (Fla. 3d DCA 2006). Once the trial court ventures beyond the pleadings to determine the merits of the motion, the granting or denial of a judgment on the pleadings constitutes error. Id. In the case below, the court looked beyond the pleadings; for example, the court reviewed each of the unsworn answers to interrogatories and the now-deemed admitted request for admissions. In doing so, the trial court exceeded the narrow scope of matters which may properly be considered in ruling upon a motion for judgment on the pleadings.
On appeal, United correctly and properly admits that the trial court erred in considering matters outside the pleadings. United argues, however, that the “tipsy coachman” doctrine applies to this case and that the final judgment should be affirmed because the ruling of the trial court was correct even though incorrect reasons were assigned for the ruling, citing Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). United argues that based upon the record, the trial court in effect granted a summary judgment, which it is allowed to entertain sua sponte at a pretrial conference. Ferguson v. V.S.L. Corp., 528 So. 2d 32, 33 (Fla. 3d DCA 1988).
Although such judicial action may save time, such a procedure is only to be employed in the proper case and should be utilized with an “abundance of caution.” Bess v. 17545 Collins Ave, Inc., 98 So. 2d 490, 491 (Fla. 1957). Further, if the trial court intends to consider whether summary judgment should be granted, it must apply the substantive and procedural safeguards of Rule 1.510, Florida Rules of Civil Procedure. A movant for summary judgment has the initial burden of demonstrating the absence of any genuine issue of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Once the moving party presents competent evidence to support the summary judgment motion, the opposing party must come forward with evidence which is sufficient to reveal a genuine issue of material fact. Valderrama v. Portfolio Recovery Associates, LLC, 972 So. 2d 239 (Fla. 3d DCA 2007). Prosper Diagnostic was given neither notice that summary judgment would be considered on the day of trial, nor an opportunity to present evidence establishing the existence of a genuine issue of material fact. In Jaramillo v. Dubow, 588 So. 2d 677, 678 (Fla. 3d DCA 1991), the Third District reversed an order granting judgment on the pleadings, and in doing so rejected the very argument advanced by United in this appeal:
The defendant contends, however, that at the hearing on the motion for judgment on the pleadings, the trial court had the discretion to treat the motion as being a motion for summary judgment, thereby allowing the court to consider matters outside the pleadings. There is no merit to this argument because the trial court granted the defendant’s motion for judgment on the pleadings and at no time entertained the subject motion as a motion for summary judgment. Beyond that, where the trial court determines that it wishes to treat a motion for judgment on the pleadings as a motion for summary judgment so that it may consider matters outside the pleadings, it must so inform the parties and allow them the time and opportunity called for under the summary judgment rule, Fla. R. Civ. P. 1.510, to submit affidavits and other evidentiary materials in support of, or in opposition to, the motion.
See also Barco Holdings, LLC v. Terminal Inv. Inc., 967 So. 2d 281 (Fla. 3d DCA 2007) (trial court must afford to parties adequate opportunity to submit evidence prior to treating a motion for judgment on the pleadings as a motion for summary judgment).
Adopting the rationale of United’s argument would not only run counter to Jaramillo, but could encourage trial courts to circumvent the notice requirements set forth in Rule 1.150. Upholding the action of the trial court in the instant case would transform an ore tenus motion for judgment on the pleadings into a motion for summary judgment, without notice, on the morning of the first day of trial.1 This is not a situation to which the “tipsy coachman” doctrine should be applied.
Based on the foregoing, this Court reverses the ruling below and remands to the trial court for further proceedings consistent with this opinion. (WARD and VENZER, JJ., concur.)
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1It should also be noted that the trial court did not make a specific finding that there existed no genuine issue of material fact. Indeed, both sides were ready to proceed to trial that morning and to present testimony and evidence regarding factual matters. Summary judgment should only be granted where there exists no genuine issue as to any material fact and the trial court makes an express finding to that effect.
