21 Fla. L. Weekly Supp. 988c
Online Reference: FLWSUPP 2110PEREInsurance — Personal injury protection — Summary judgment — In ruling on motion for summary judgment, trial court erred in considering documents that were not served on insured or filed with court prior to hearing on motion
ROSAIDA PEREZ, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-167 AP. L.T. Case No. 00-264 CC 24 (01). June 23, 2014. An Appeal from the County Court for Miami-Dade County, Florida, Smith, J. Counsel: Jeannie M. Jontiff, Jontiff & Jontiff and Virginia M. Best, Lopez & Best, for Appellant. Michael J. Neimand, Office of the General Counsel, United Automobile Insurance Company, for Appellee.
(Before ARZOLA, SARDUY, and MANNO SCHURR, JJ.)
((MANNO SCHURR, J.) This is an appeal from a final summary judgment entered July 27, 2012 in the county court in favor of Appellee United Automobile Insurance Company. The standard of review of an order granting a final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].
On or about January 27, 2000, Plaintiff, Rosaida Perez, filed suit for Personal Injury Protection Benefits under her policy of insurance with United Automobile Insurance Company (United), for injuries sustained in an automobile accident that occurred on August 29, 1999. After 12 years of litigation, the trial Court heard United’s Third Motion for Summary Judgment on July 27, 2012. On the day of the summary judgment hearing, and over Appellant’s objection, the Appellee handed the trial court copies of: 1) the first deposition of the Appellant dated December 7, 2001; 2) interrogatory answers of the Appellant dated September 6, 2001; and 3) a copy of a police report for the accident date. Obviously. Appellee intended to rely upon these documents as evidence in support of its motion but none of these documents were filed of record until the day after the hearing on United’s summary judgment motion, nor were these documents provided to Perez’ counsel prior to the hearing. Despite the objections raised at the hearing by Appellant’s counsel, the trial court allowed the evidence, considered the evidence and entered summary judgment in favor of United based upon that evidence. This appeal followed.
The central issue on appeal is whether the trial court erred in considering the evidence presented to it for the first time at the summary judgment hearing.
Florida Rule of Civil Procedure 1.510(c) provides that a party moving for summary judgment shall serve the motion at least twenty days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. Viola v. U.S. Bank Nat’l Ass’n, 133 So. 3d 1018, 1019 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D133b] (final summary judgment was improperly entered based on an unauthenticated original promissory note and mortgage served twelve days prior to the hearing); Williams v. Bank of Am., N.A., 101 So. 3d 1288, 1289 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D2823a]. The purpose of the Rule is to prevent ambush by allowing the nonmoving party to be prepared for issues that will be argued at the summary judgment hearing. Hotel 71 Mezz Lender, LLC v. Tutt, 66 So. 3d 1051, 1054 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1672a].
Because the appellee filed this evidence on the day after the hearing we find that the trial court erroneously considered these previously unfiled documents as evidence. Summary judgment is an alternative to a party’s right to trial and as such, the Court must follow the strict procedures set forth in the Rule.
Accordingly, we REVERSE the final summary judgment entered in favor of the appellee and remand for further proceedings consistent with this opinion. Because we reverse the final summary judgment below under Florida Rule of Civil Procedure Rule 1.510(c), we do not consider the remaining issues on appeal. Appellee’s motion for attorney’s fees is hereby denied. Appellant’s motion for fees is granted, conditioned on the Appellant prevailing on the merits below pursuant to Fla. Stat. 627.428. (ARZOLA and SARDUY, JJ. concur.)
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