Opinion
Case No. 5D18-2481
02-14-2020
James A. WARDELL a/k/a James Wardell and Micheal W. Courson a/k/a Michael Courson, Appellants, v. FIFTH THIRD MORTGAGE COMPANY, Appellee.
Kevin P. O'Brien, of Law Offices of Kevin P. O'Brien, P.A., Tampa, and David T. Weisbrod, Tampa, and James A. Wardell, of Wardell Law Firm, P.A., Tampa, for Appellants. Richard S. McIver, and H. Michael Muniz, of Kass Shuler, P.A., Tampa, for Appellee.
Kevin P. O'Brien, of Law Offices of Kevin P. O'Brien, P.A., Tampa, and David T. Weisbrod, Tampa, and James A. Wardell, of Wardell Law Firm, P.A., Tampa, for Appellants.
Richard S. McIver, and H. Michael Muniz, of Kass Shuler, P.A., Tampa, for Appellee.
HARRIS, J. James Wardell appeals the final summary judgment entered against him and in favor of Fifth Third Mortgage Company ("FTMC"). We agree with Wardell that the trial court erred in summarily dismissing his amended counterclaim and in granting FTMC's motion for summary judgment. We reverse. We decline to address the remaining issues raised by Wardell in this appeal.
Early on in the course of this mortgage foreclosure litigation, Wardell filed a counterclaim against FTMC. Arguing that the issues raised in the counterclaim were barred by the statute of frauds, FTMC succeeded in convincing the trial court to dismiss Wardell's pleading. Almost three years later, Wardell filed an amended counterclaim, raising, for the most part, issues that had accrued subsequent to the dismissal of the original counterclaim. Wardell did not obtain leave of court prior to filing his amended pleading nor did he obtain FTMC's consent. For these reasons, FTMC filed a motion to strike Wardell's amended counterclaim and set the matter for a hearing.
While the parties were awaiting the hearing on FTMC's motion to strike, FTMC filed a motion for summary judgment. FTMC then amended its notice of hearing to reflect that its motion for summary judgment would be heard at the same time as the motion to strike. When the hearing time arrived, the trial judge repeatedly told the parties that she had a very busy calendar that morning and that she did not have enough time to hear their arguments. The trial judge advised the parties that she would take the matter under advisement, assuring them that she would review all of their submissions before making her ruling and then concluded the hearing.
Approximately one week later, while the matter was still under advisement, FTMC submitted a "Supplemental Memorandum in Support of Motion for Summary Judgment." In this filing, FTMC identified evidence that it wanted the court to rely upon in ruling on the motion for summary judgment and specifically included technical admissions to requests for admissions, which FTMC never raised in its original motion for summary judgment. FTMC also filed supplemental affidavits in support of its motion for summary judgment well after the conclusion of the abbreviated hearing.
Before Wardell could respond to these filings, the court ruled on the pending motions, granting FTMC's motion to strike the amended counterclaim as well as the motion for summary judgment. In striking Wardell's counterclaim, the court accepted FTMC's argument that leave of court was required before that pleading could be filed. On appeal, FTMC concedes error on this point but urges us to affirm under the tipsy coachman doctrine. We find FTMC's tipsy coachman argument unpersuasive and reverse the order striking the amended counterclaim.
We also reverse the order granting FTMC's motion for summary judgment, and hold that Wardell was denied due process by the trial court because he was not given an opportunity to address FTMC's submissions before the court ruled on the motion. Although the record indicates several instances where Wardell was deprived of a full and fair opportunity to be heard, this was the only instance Wardell properly raised and preserved and is sufficient to warrant reversal.
In granting summary judgment, the court improperly relied on "evidence" submitted by FTMC for the first time subsequent to the hearing on the motion for summary judgment. Not only did this violate Florida Rule of Civil Procedure 1.510, which provides that a motion for summary judgment "must specifically identify any affidavits ... admissions ... and other materials ... on which the movant relies," but Wardell was not even given an opportunity to address FTMC's submissions before the court ruled on the motion. Once Wardell received the order granting summary judgment, he immediately moved for rehearing, appropriately arguing that the court ruled on summary judgment evidence that was both inaccurate and not included in FTMC's motion.
When the motion for rehearing was denied, Wardell filed the instant appeal, arguing in both his initial and reply briefs that FTMC's supplemental memorandum included evidence which had not been identified in FTMC's original motion for summary judgment. By not giving Wardell a meaningful opportunity to be heard and by basing its ruling on improper and untimely summary judgment evidence, the trial court violated Wardell's due process rights. City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995) ("[ Florida Rule of Civil Procedure 1.510 ] is designed to prevent ‘ambush’ by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing." (quoting Swift Indep. Packing Co. v. Basic Food Int'l, Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984) )).
We are compelled to reverse the trial court's orders and remand this matter for the trial court to conduct a full hearing on FTMC's motion to strike Wardell's amended counterclaim and motion for summary judgment.
REVERSED and REMANDED.
EISNAUGLE, J., and STROWBRIDGE, P., associate judge, concur.