CAMPBELL-SETTLE PRESSURE GROUTING & "GUNITE" CO., INC., APPELLANT,
v.
DAVID M. ABEL CONSTRUCTION CO. ET AL., APPELLEES
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Campbell-Settle challenged a partial summary judgment entered by the trial court, which improperly considered oral testimony during the summary judgment hearing. The court held that even if Campbell-Settle waived objection to the oral testimony, the trial court erred in resolving genuine issues of material fact and that any such waiver did not constitute a waiver of the right to a jury trial.
The trial court erred in resolving admittedly genuine issues of material fact and entering partial summary judgment. Even assuming Campbell-Settle waived its objection to oral testimony, such a waiver does not constitute a waiver of the previously demanded right to a jury trial, and therefore does not sanction the trial court's resolution of disputed factual issues.
[1] Oral testimony is impermissible at hearings on a motion for summary judgment.
[2] A trial court errs when it resolves admittedly genuine issues of material fact and enters partial summary judgment.
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Join FLexlaw to unlock all legal intelligence“the trial court erred when it resolved admittedly genuine issues of material fact and entered the partial summary judgment in appellees' favor”
Establishes the core holding that summary judgment cannot be granted when genuine issues of material fact exist
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Join FLexlaw to unlock all legal intelligenceDuring a motion for summary judgment hearing, the trial court considered oral testimony over Campbell-Settle's objection, which violated Florida Rules…
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DANIEL S. PEARSON, Judge.
At hearings on motion for summary judgment, the trial court, over appellant’s objection, considered oral testimony. While this procedure is clearly impermissible, Fla.R.Civ.P. 1.510; Ogden Trucking Company v. Heller Bros. & Co., 130 So. 2d 295 (Fla. 3d DCA 1961), the appellees, in whose favor partial summary judgment was entered, contend that Campbell-Settle waived its objection by thereafter eliciting testimony from its own witnesses. We need not decide whether, faced with an apparent Hobson’s choice, Campbell-Settle’s failure to stand pat and take its chances constituted a waiver. Cf. City of Miami v. Kory, 394 So. 2d 494 (Fla. 3d DCA 1981) (holding that one under a perceived coercion who resigns, waives the right to thereafter contest unlawful discharge).
We hold instead that even assuming Campbell-Settle waived its right to object to the taking of oral testimony, (1) the trial court erred when it resolved admittedly genuine issues of material fact and entered the partial summary judgment in appellees’ favor, Plescow v. Gulf States Zayre, Inc., 350 So. 2d 1147 (Fla. 3d DCA 1977); see also Rice v. Mercy Hospital Corporation, 275 So. 2d 566 (Fla. 3d DCA 1973); and (2) a waiver of the right to object to the taking of oral testimony at a summary judgment proceeding is not, as appellees suggest, a waiver of Campbell-Settle’s previously demanded right to a jury trial, so as to convert such proceeding into a non-jury trial, and thus sanction the trial court’s resolution of disputed fact issues, Barth v. Florida State Constructors Service, Inc., 327 So. 2d 13 (Fla.1976); see also Padgett v.
First Federal Savings and Loan Association of Santa Rosa County, 378 So. 2d 58 (Fla. 1st DCA 1979).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Orange Lake Country Club, Inc. v. Levin, 645 So. 2d 60 (Fla. 5th DCA 1994)…the court had to rely upon oral testimony at the hearing in order to reach his decision. Oral testimony is inappropriate at a hearing on a motion for summary judgment. Campbell-Settle Pressure Grouting & Gunite Co., Inc. v. David M. Abel Const. Co., 395 So. 2d 247 (Fla. 3d DCA 1981). See Rule 1.510, Fla.R.Civ.P. The determination of disputed material facts cannot be properly accomplished during a hearing for summary judgment. Plescow v. Gulf States Zayre Inc., 350 So. 2d 1147 (Fla. 3d DCA 1977). Even if thes…
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Brunsman v. Nat'l Rent-A-Fence Co., 612 So. 2d 719 (Fla. 5th DCA 1993)…40 (Fla. 5th DCA 1984). We find no such error exists in this case, based on the record (exclusive of oral testimony) which existed at the summary judgment hearing. See Campbell-Settle Pressure Grouting & Gunite Co. v. David M. Abel Construction Co., 395 So. 2d 247 (Fla. 3d DCA 1981); Mysels v. Barry, 332 So. 2d 38 (Fla. 2d [*720] DCA), rev. denied, 341 So. 2d 1079 (Fla.1976). Petition for Certiorari DENIED. COBB, W. SHARP and HARRIS, JJ„ concur.…
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Schmidt v. State Farm Mut. Ins. Co., 750 So. 2d 695 (Fla. 2d DCA 2000)…r or his attorney’s explanation, there is not a scintilla of competent evidence in the record to support the recitation made by Schmidt’s attorney at the hearing. See Campbell Settle Pressure Grouting & Gunite Co., Inc. v. David M. Abel Constr. Co., 395 So. 2d 247 (Fla. 3d DCA 1981) (holding that trial judge cannot convert a summary proceeding into a trial by taking sworn testimony, over objection, in derogation of a demanded right to jury trial).1 This case is being reversed by the majority because Schmidt’…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Padgett v. First Fed. Sav. & Loan Ass'n OF Santa Rosa Cnty., 378 So. 2d 58 (Fla. 1st DCA 1979)
- City OF Miami v. Kory, 394 So. 2d 494 (Fla. 3d DCA 1981)
- Barth v. Fla. State Constructors Serv., Inc., 327 So. 2d 13 (Fla. 1976)
- Gaddis v. Atl. Auto Rental, Inc., 130 So. 2d 295 (Fla. 2d DCA 1961)
- Joan v. LEE, 350 So. 2d 1147 (Fla. 3d DCA 1977)
- S. Bell Tel. & Tel. Co. v. Cnty. OF Dade, 275 So. 2d 566 (Fla. 3d DCA 1973)