Florida Court Faults Judge for Granting Summary Judgment Without Notice

"For litigants, the important takeaway is to play it on the side of caution, especially if you want it to be upheld on appeal. File that cross-motion for summary judgment," said Jennifer Bautista of Tripp Scott, who is not involved in the case.

A SPECIAL REPORT by LAW.com's Annie Mayne with commentary by Tripp Scott's Jennifer A. Bautista as published in:

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A Florida appeals court reversed $10,000 in attorney fees and remanded a lien dispute Wednesday, raising questions about what proper notice and reasonable time for granting summary judgment to a nonmovant really look like under a relatively new rule of civil procedure. 

The Third District Court of Appeal ruling affirmed Miami-Dade County Court Judge Maria D. Ortiz’s decision to deny the motion for summary judgment from the movants, finding that issues in the case were not moot. But the appellate panel reversed the portion of Ortiz’s ruling that granted final judgment in favor of nonmovant A&P Air Conditioning Co.—including the award of $10,000 in attorney fees—finding that proper notice and time had not been given for the other party to respond as required.

"We hold that the trial court erred in granting affirmative relief in favor of A&P without notice and in the absence of a proper pleading seeking such relief," reads the ruling, authored by Judge Kevin J. Emas and joined by Chief Judge Edwin A. Scales III and Judge Ivan F. Fernandez.

A&P was contracted by apartment owners Meritxell Pons Torres and Valeria Scinto to install two air conditioning units in 2021. The owners paid the $5,700 deposit but refused to make good on the remaining balance, claiming the units were improperly installed. A&P recorded a claim of lien on the underlying property and then filed a complaint seeking to foreclose on it. The apartment owners countersued, alleging slander of title.

A&P eventually fixed the AC unit, and the owners paid the rest of the money owed. A&P filed for mootness, claiming the dispute was settled. But the apartment owners argued that A&P’s lien was premature, unlawful, impaired their title, and still needed to be resolved through the slander of title complaint.

The appellate panel agreed, finding the case was not moot and the dispute over whether A&P had “substantially” performed the work before filing the lien had not been resolved. The panel also held that the July 2024 hearing, where Judge Ortiz ruled in favor of A&P, was supposed to be limited to the owners’ motion for summary judgment on A&P’s lien foreclosure claim. By granting summary judgment that had not been requested, proper notice and reasonable time had not been given, the appellate court determined.

"The only matter set for hearing was Owners’ motion seeking summary judgment in its favor on A&P’s claim for foreclosure of construction lien," Emas wrote. "However, the trial court essentially short-circuited the case by determining—without any motion from A&P and without any notice to Owners—that A&P was entitled to judgment in its favor on its claim of lien, that A&P’s work was substantially completed at the time it filed its claim of lien, that Owners’ claims were moot, and that A&P was the prevailing party entitled to judgment on all claims and an award of attorney’s fees as well."

Jennifer Bautista of Tripp Scott, who is not involved in the case, told the Daily Business Review it is noteworthy that the appellate ruling relied on precedent set in Hotel 71 Mezz Lender, LLC v. Tutt (2011), which was decided a decade before Florida Rule of Civil Procedure 1.510(f) took effect in 2021.

“Given that we really have no guidance on what ‘notice’ and ‘reasonable time’ is, and the courts are taking a strict approach with it and citing that old case law from 2011notwithstanding this new rule ... I would treat it as though there will be few instances, if any, where someone could succeed on affirmance of an entry of summary judgment in favor of a nonmovant under 1.510(f)," Bautista said in a Thursday phone interview.

Bautista said that, without clarity on how notice and reasonable time are being defined, attorneys should err on the side of caution and, when they have the grounds, always file a cross-motion for summary judgment.

“For litigants, the important takeaway is to play it on the side of caution, especially if you want it to be upheld on appeal," Bautista said. "File that cross-motion for summary judgment."

Gary B. Goldman of Gary Bennett Goldman PA, attorney for A&P, told the DBR in a Thursday phone interview that he believed the July 2024 hearing had been a continuation of a hearing on his motion for mootness and that he disagreed with the appellate court’s ruling.

“It was a continuation of our first hearing date, when I had my suggestion of mootness ... [I thought] it was a continuation because she never ruled on my motion, my suggestion of mootness," Goldman said.

Alexis Fields, partner at KO Lawyers and attorney for the apartment owners, did not respond to a request for comment by publishing time Thursday.