Summary
holding that grant of summary judgment without notice and based on relief unpled is improper
Summary of this case from Abundant Living Citi Church, Inc. v. Abundant Living Ministries, Inc.Opinion
No. 3D14–850.
04-29-2015
KENDALL COMMERCIAL ASSOCIATES, LLC, etc., Appellant, v. DRAKES, LLC, et. al., Appellees.
McDonald Hopkins and Alan M. Burger and Mary F. April, West Palm Beach, for appellant. Erik D. Diener, Plantation; Richard A. Sherman, Sr. and James W. Sherman, Fort Lauderdale; Wolpe, Leibowitz & Fernandez, LLP, and Joel R. Wolpe, Miami, for appellees.
McDonald Hopkins and Alan M. Burger and Mary F. April, West Palm Beach, for appellant.
Erik D. Diener, Plantation; Richard A. Sherman, Sr. and James W. Sherman, Fort Lauderdale; Wolpe, Leibowitz & Fernandez, LLP, and Joel R. Wolpe, Miami, for appellees.
Before SALTER, EMAS and FERNANDEZ, JJ.
Opinion
FERNANDEZ, J.
Kendall Commercial Associates, LLC, etc., appeals the trial court's order entering summary judgment in favor of Drake's, LLC and seven individual guarantors on all counts of Kendall's amended counterclaim in the underlying landlord-tenant action. We reverse because the trial court granted relief that was neither sought in the summary judgment motion nor noticed for hearing.
The order on appeal granted summary judgment on the amended counterclaim in favor of the tenant, Drake's, LLC, and in favor of seven guarantors/third-party defendants. However, the motion for summary judgment filed by Drake's, LLC only sought relief on behalf of Drake's, LLC. Because there was no notice to Kendall, the landlord, that relief was being sought on behalf of the guarantors, and the trial court granted relief not pled or sought in Drake's, LLC's motion, we reverse the order granting summary judgment as to the guarantors. See Hotel 71 Mezz Lender, LLC v. Tutt, 66 So.3d 1051 (Fla. 3d DCA 2011).
We additionally dismiss the remainder of this appeal for lack of jurisdiction, as the remaining portion of the order on appeal is not an appealable partial final judgment under Florida Rule of Appellate Procedure 9.110(k).
Reversed in part and remanded; appeal dismissed in part.