Plaintiffs Must Overcome Defenses to Win Summary Judgment

Another appellate victory for  Dineen Wasylik and DPW Legal, overturning an improper grant of summary judgement in a foreclosure appeal.

Another appellate victory for
Dineen Wasylik and DPW Legal,
overturning an improper
grant of summary judgement
in a foreclosure appeal.

We are proud to report our firm racked up another appellate win yesterday — DPW Legal secured the reversal of summary judgment against our clients in a mortgage foreclosure action. In this case, the Bank before the trial court won summary judgement, even though its summary judgment motion made no mention of the defendants’ numerous affirmative defenses set out in their answer.

On appeal, we correctly pointed out that Rule 1.510 Requires that a motion for summary judgment “shall state with particularity the grounds upon which it is based and substantial matters of law to be argued,” as well as the myriad of cases that require plaintiffs to affirmatively overcome each and every defense before they can earn summary judgment. The appellate court ultimately agreed, and reversed the summary judgment, explaining:

It is true that the Bank did submit a response to an affidavit regarding the Paragraph 22 notice, disputing the Amstones’ affidavits that the notice had not been received or was deficient. But the Bank did not address the affirmative defenses in its motion for summary judgment. And at the hearing, the Bank’s counsel simply asserted that “the Affirmative Defenses were dealt with.” The Amstones’ counsel responded that the Bank had failed to refute all of the affirmative defenses…The Amstones’ counsel also emphasized that the affidavits regarding the Paragraph 22 notice crated a factual dispute that needed to be resolved. The court made no findings regarding any of these defenses. Accordingly, genuine issues of material fact remained, and summary judgment should not have been granted.

In our view, this was a case where strong advocacy at oral argument made a huge difference. What is not clear from the opinion is that the Bank argued that the defendants had waived this issue by failing to argue it on the record below, and the court seemed to want to buy that waiver argument. At oral argument, we were able to refute the waiver argument with citation directly to the proper part of the record showing why it was not waived. We’ve ordered the oral argument video, and will further expound on the important preservation issues in a later post, when we can share the video. But in the meantime, the lesson to be learned is that at the trial level, preservation is key, and at the appellate level, knowing your record cold is key (see my prior post on preparing for oral argument).

Attorney Ralph Fisher acted as able trial counsel, and ensured the issues were preserved on appeal.

The case is Amstone v. The Bank of New York Melon, No. 2D14-5480 (Jan. 6, 2016) [.pdf].

Evidence Required When Seeking Defensive Summary Judgment

I love it when I get to report on my own victories. Today the Fifth District reversed a trial court’s grant of summary judgment in a personal injury case, on two important grounds. From a procedural nerd standpoint, the Court correctly held that the defendants could not get summary judgment by simply quoting the plaintiff’s deposition and arguing “he doesn’t have evidence.” The Court reiterated that “[t]he lack of convincing evidence in favor of a party opposing summary judgment is not the same as conclusive evidence in favor of the party seeking summary judgment.” A defendant seeking summary judgment “cannot simply allege that the plaintiff’s evidence may not be sufficient, but must in fact present evidence “establishing a lack of liability on their part.” The Court therefore reversed the grant of summary judgment to the parties that simply argued “he doesn’t have any evidence.”

But just as important is the Court’s interpretation of the release signed by the Plaintiff. The injury arose when Plaintiff Owen Peterson attended a paintball competition and surrounding expo at Disney World. He was hit in the head at the expo, and went to the hospital for his injuries. He was cleared for paintball, and so came back and the next day signed a release so he could participate in the paintball competition, which he did. Once he got home, he realized his head injury was worse than he initially realized, and eventually sued Disney and the vendor whose item hit him in the head. Disney sought summary judgment based on the release, which stated that it applied to injuries sustained “before, during and after” participation in the Event. The court ruled:

Our analysis of this post-claim release must evaluate whether both parties knowingly gave clear and valid consideration in the Waiver. The Waiver specifically stated, “In consideration of my and/or my child or ward’s participation in the Sport Type(s) and Event referenced above and any related activities (collectively, the ‘Event’),
wherever the Event may occur, I agree to assume all risks incidental to such participation.” The Waiver further notified the “Participant” that by signing the Waiver he declared himself “physically fit” and possessing “the skill level required to participate in the Event and/or any such activities.” This language clearly focused the signatory on the paintball competition, not the vendor area. The parties further admitted that Disney did not require people accessing only the vendor area to sign the Waiver.

We reject Disney’s argument that the Waiver’s reference to injuries suffered “before, during or after such participation” included the November 8 incident. The Waiver failed to clarify that it included any incident that occurred before its signing, and thus failed to notify Peterson of a post-claim release.

The case is Peterson v. Flare Fittings, Inc., Case No. 5D13-2235 (5th DCA Oct. 9, 2015)[.pdf]. This was one of the first cases I took on when I opened the doors to DPW Legal back in 2013. As the opinion notes, Peterson opposed the case pro se, after his prior attorney withdrew on the eve of trial soon after the Defendants filed their motions for summary judgment. To turn a pro se loss into an appellate win is just sweet as can be. So pleased to have gotten such a great result for my client.

The Legacy of Justice Arthur J. England, Jr: A Supreme Court of Limited Jurisdiction

Justice Arthur England

–Justice Arthur England. Photo courtesy State Archives of Florida, Florida Memory, http://floridamemory.com/items/show/19904

The Florida Bar Journal this month contains a fascinating analysis of the legacy of recently deceased former Florida Supreme Court Justice Arthur J. England. If you’ve ever gotten a PCA opinion from a District Court of Appeal and lamented the fact that you couldn’t seek further review from the Florida Supreme Court, it seems you have Justice England to thank. The article goes into great detail about Justice England’s consistent string of concurring and dissenting opinions in the late 1970s, all of which argued that the Florida Supreme Court should not go behind a no-opinion DCA decision to further review the underlying “record proper,” as the Court held it could in Foley v. Weaver Drugs, Inc., 177 So.2d 221, 225 (Fla. 1965). In 1978, then Chief Justice England appointed an Appellate Structure Commission, which analyzed the jurisdiction of the court system and eventually recommended a constitutional amendment to limit the Supreme Court’s jurisdiction. By 1980, the Florida Supreme Court, interpreting it’s new constitutional scope, ruled that it lacked conflict jurisdiction over unelaborated PCAs. See Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980).

The article provides lots of interesting background about the political and judicial workings at play to create such a sea-change in the jurisdiction of the Florida Supreme Court, and in the Florida court system as a whole. If you’re a rules geek like me, it is definitely worth the read!