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Vivona v. Colony Point 5 Condo

District Court of Appeal of Florida, Fourth District
Feb 18, 1998
706 So. 2d 391 (Fla. Dist. Ct. App. 1998)

Opinion

Case No. 96-3671.

Opinion filed February 18, 1998. JANUARY TERM 1998.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. 94-4858 (03).

Lisa L. Dolin and Charles M. Eiss of Law Offices of Glantz Glantz, P.A., Fort Lauderdale, for appellants.

Laura S. Douglas of Cooney, Mattson, Lance, Blackburn, Richards O'Connor, P.A., Fort Lauderdale, for appellee.


We affirm the final summary judgment entered in favor of appellee. Appellants initially claim that they had not received a notice of hearing on the motion for summary judgment, although they were present to argue a similar motion filed on behalf of a co-defendant. The trial court offered the appellants additional time to respond to the motion, and they filed affidavits and a memorandum in response to the motion without contesting the procedure. Thus, they waived any objection that they may have had with respect to the lack of notice. See Ultimate Corp. v. CG Data Corp., 575 So.2d 1338, 1339 (Fla. 3d DCA 1991).

On the substantive issues, we hold that the impact rule precludes Mrs. Vivona's recovery of damages for emotional distress because she failed to offer any evidence of any physical impact to her. See R.J. v. Humana of Florida, Inc., 652 So.2d 360, 362 (Fla. 1995). Mrs. Vivona's reliance on Zell v. Meek, 665 So.2d 1048 (Fla. 1995), which recognized a negligence action for discernible physical injuries resulting from the psychological trauma of witnessing a negligent injury of a close family member, is misplaced because both Mr. and Mrs. Vivona sought recovery for their own direct injuries; they did not allege that they had witnessed each other suffer any physical injury. See Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177, 1179 (Fla. 3d DCA 1997).

Finally, with regard to Mr. Vivona's injuries, we hold that the trial court did not err in granting summary judgment on the issue of proximate cause. See McDonald v. Florida Dep't of Transp., 655 So.2d 1164, 1168 (Fla. 4th DCA 1995); Bosket v. Broward County Hous. Auth., 676 So.2d 72, 74 (Fla. 4th DCA 1996).

Affirmed.

WARNER, KLEIN and STEVENSON, JJ., concur.


Summaries of

Vivona v. Colony Point 5 Condo

District Court of Appeal of Florida, Fourth District
Feb 18, 1998
706 So. 2d 391 (Fla. Dist. Ct. App. 1998)
Case details for

Vivona v. Colony Point 5 Condo

Case Details

Full title:MICHAEL VIVONA and ELEANOR VIVONA, his wife, Appellants, v. COLONY POINT 5…

Court:District Court of Appeal of Florida, Fourth District

Date published: Feb 18, 1998

Citations

706 So. 2d 391 (Fla. Dist. Ct. App. 1998)