Plaintiffs Must Overcome Defenses to Win Summary Judgment

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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

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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.

Magistrates, Reconsideration, and Writs, Oh My!

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Every once in a while a case comes along that is just a treasure trove of procedural goodness. It’s even nicer when you happen to know the prevailing party, and know the rules as applied helped the good guys. The case is Seigler v. Bell, Case No. 5D14-642 (Fla. 5th DCA Sept. 19, 2014)[.pdf]. The underlying dispute is a complicated child custody battle between a Mother and Grandmother. While there is no need to go into the nitty gritty of the underlying facts of the dispute, the decision today provides great insight into several issues of broad application: (a) The role of magistrates in proceedings before a trial court, (b) the important differences between rehearing and reconsideration at the trial court level, and (c) jurisdiction over writs of certiorari and mandamus. Let’s unpack each in turn.

Magistrates and Finality

The opinion lays out in detail the legal and procedural effect of an issue being heard by a magistrate. Most importantly:

While a magistrate’s report is more than a mere recommendation, it is not a final judgment, as magistrates lack the authority to enter final judgments….Even when no exceptions are filed, the trial court is “duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether[,] under the law and facts[,] the court is justified in entering the judgment recommended” by the magistrate…. Merely “approving” the magistrate’s report is not sufficient to effect an appealable final judgment.

Slip. Op. at 7-8, citations omitted. In this case, both parties did file exceptions, and the trial court ruled on them, but the effect of that ruling was not a final judgment. The trial court rejected one party’s exceptions and accepted some of the other party’s exceptions, but the resulting order on the recommendation merely stated “the Report … is hereby modified….” Because the trial court “modified” the magistrate’s report but did not enter judgment, the order modifying the report (“the Modification Order”) was not a final order.

Rehearing v. Reconsideration

Whether the Modification Order was a final order is important in this case, because it is determinative of the next issue the appellate court decided — whether the Grandmother’s “Motion for Rehearing or Reconsideration” (the “Reconsideration Motion”) was timely and authorized. The Mother’s Petition sought review of the trial court’s order granting the Motion for Rehearing or Reconsideration. The Reconsideration Motion was filed 12 days after the trial court entered its order modifying the magistrate’s report and recommendation. If the Modification Order had been a final judgment, then it would be subject to a Rule 1.530 motion for rehearing. But then the Reconsideration Order would have been untimely, because at the time Rule 1.530 required that a motion for rehearing be served no later than 10 days after entry of judgment. (The rule was since amended to allow 15 days for service of a motion for rehearing).

The Court held that since the Modification Order was not a final order, the trial court had the inherent power to reconsider its interlocutory order at any time. Op. at 9. The court explained:

Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap. Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . . .” … Nomenclature does not control, and motions for either “rehearing” or “reconsideration” aimed at final judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders shall
be treated as motions for reconsideration.

Op. at 9-10, citations omitted. The Court also emphasized that the trial court had the power to sua sponte reconsider its own interlocutory orders. Op. at 10.

Certiorari, Mandamus, and Appealable Non-Final Orders

Because the Court had the power to reconsider its interlocutory order, the next question it considered was whether the order granting reconsideration in the Grandmother’s favor (“the Reconsideration Order”) was an appealable order. The Court didn’t even look at whether the Reconsideration Order was a final order, because it left open further proceedings and still did not take on the tenor of a judgment of the Court.

The Court considered but rejected the argument that the Reconsideration Order could be classified as an appealable nonfinal order under Rule 9.130(a)(3)(C)(iii), which allows for immediate appeal of orders determining the right to child custody in family law matters. It is not clear whether the Mother made this argument, but the Court did the right thing in considering it in any event, because Rule 9.040(c) allows that “if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Fla. R. App. P. 9.040(c). However, the Court concluded that the order does not determine the right to custody, but “merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the prior temporary custody order.” Op. at 10. It’s a decision to take more evidence, not a determination of custody, and therefore not an appealable interlocutory order.

The court also considered whether the Mother’s Petition entitled her to the relief requested, certiorari or mandamus relief. Both certioari and mandamus are extraordinary appellate remedies, because they allow the appellate court to step in and rule on the propriety of an interlocutory order. The Court dismissed the Petition for Writ of Certiorari for lack of jurisdiction and denied the Petition for Writ of Mandamus.

The Mother argued in favor of certiorari review because, based on her view that the Rehearing Motion was untimely, the trial court was without jurisdiction to entertain it. The Court set out the standard test for certiorari relief:

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.”… The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional.

Applying this test — and its prior procedural analysis that the trial court had the power to reconsider the Modification Order and enter the Reconsideration Order — the Court found that the Reconsideration Order neither departed from the essential requirements of law or caused irreparable harm. The Court therefore held that it lacked jurisdiction to grant the requested certiorari relief.

The request for mandamus relief likely asked the Court to order the trial court to enter final judgment on the Modification Order. As the Court explained:

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” … “To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law.”

Op. at 11 (citations omitted). In this case, because the trial court had the power to reconsider its own interlocutory order, the Mother could not prove she was entitled to compel the trial court to enforce an established legal right to entry of judgment in her favor. The Court therefore denied the petition for writ of mandamus.

Kudos

Congratulations again to my friend Vicki Levin Eskin of Levy & Associates, P.A. for her appellate win! Vicki represents the Grandmother in this case pro bono, to boot (that means free, folks).

Full Disclosure: I assisted Vicki pro bono in responding to the appellate motion for rehearing or rehearing en banc filed by the other side. I am pleased to report that the court denied rehearing today, so the decision is now final.