SWIFT INDEPENDENT PACKING COMPANY, APPELLANT,
v.
BASIC FOOD INTERNATIONAL, INC., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Swift Independent Packing Company appealed a summary judgment granted in favor of Basic Food International, challenging the trial court's determination that no agency relationship existed between Swift and an independent broker who negotiated the beef sale. The appellate court reversed, finding that the trial court violated procedural rules by allowing the defendant to raise the agency issue for the first time at the summary judgment hearing without prior notice, thereby depriving the plaintiff of opportunity to respond.
The court held that the trial court improperly granted summary judgment because the defendant failed to raise the agency issue in its motion for summary judgment as required by Rule 1.510(c), thereby ambushing the plaintiff who was unprepared to address this new argument. The court reversed the summary judgment and remanded for further proceedings.
[1] A motion for summary judgment must state with particularity the grounds upon which it is based and the substantial matters of law to be argued.
[2] A party may not raise a new legal theory for summary judgment at the hearing that was not included in the motion.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such an ambush is exactly what Rule 1.510(c), Florida Rules of Civil Procedure, was designed to prevent.”
Establishes that the procedural violation—raising a new issue at the hearing without notice—directly contravened the purpose of the summary judgment rule.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSwift and Basic negotiated for the sale of beef, with an independent broker facilitating the transaction between the parties. Prior to the summary jud…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Agency Relationship cases and more on FLexlaw
BARKETT, Judge.
Appellant challenges the propriety of an adverse summary judgment. The issue argued before the trial court at the hearing on the motion was whether the independent broker who negotiated with the parties for the sale of beef from the prospective seller, Swift, to the prospective buyer, Basic, was Swift’s agent, capable of binding Swift. The trial court determined that an agency relationship had not been established precluding Swift’s recovery and granted appel-lee/defendant Basic’s motion for summary judgment.
The record reflects that prior to this hearing, the issue of agency had never been raised by the parties. In the pleadings both parties treated the broker as Swift’s agent. Basic’s motion for summary judgment not only failed to allege the failure of the agency relationship, but described the broker as Swift’s agent.
Rule 1.510(c), Florida Rules of Civil Procedure, provides in part:
The motion [for summary judgment] shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. The adverse party may serve opposing affidavits pri-or to the day of hearing.
Basic’s motion for summary judgment was based on allegations that no genuine issue existed “with respect to the underlying verbal contract being devoid of any agreement as to the terms of credit _” At the hearing on the motion, however, Basic’s counsel argued that the broker was not Swift’s agent. He conceded that he had described the broker in his motion and in prior pleadings as Swift’s agent, but had decided to change his position. The court granted Basic’s motion for summary judgment. Swift, unprepared for the issue of agency at the hearing, subsequently attempted to provide an affidavit to the court on the agency issue by way of a motion for rehearing. This motion was denied. Such an ambush is exactly what Rule 1.510(c), Florida Rules of Civil Procedure, was designed to prevent. Cf. Spinner v. Wainer, 430 So. 2d 595 (Fla. 4th DCA 1983). Moreover, granting Basic’s motion for summary judgment on these facts not only violated Rule 1.510(c), but also the principle that when considering such a motion, the court should take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party. See, e.g., Holl v. Talcott, 191 So. 2d 40, 46 (Fla.1966); National Properties, Inc. v. Ballenger Corporation, 277 So. 2d 29, 30 (Fla. 3d DCA 1973); Fernandez v. Cunningham, 268 So. 2d 166, 169 (Fla. 3d DCA 1972).
Furthermore, it is not clear from the record in this case that Basic negated the existence of genuine issues of material fact. See Landers v. Milton, 370 So. 2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So. 2d 814 (Fla. 4th DCA 1977).
The summary judgment is reversed and the cause is remanded for further proceedings.
REVERSED AND REMANDED.
HERSEY and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Williams v. Bank OF Am. Corp., 927 So. 2d 1091 (Fla. 4th DCA 2006)…(Fla. 3d DCA 1989); Cheshire v. Magnacard, Inc., 510 So. 2d 1231, 1234 (Fla. 2d DCA 1987). In applying the rule, the trial court should take a strict reading of the papers filed by the moving party. Id.; Swift Indep. Packing Co. v. Basic Food Int'l, 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984). We reject BAC’s argument that its single conclusory statement regarding liability, contained in a footnote of a nineteen-page memorandum of law devoted solely to the statute of limitations issue, sufficed as a separate gr…
-
Garrido v. Burger King Corp., 558 So. 2d 79 (Fla. 3d DCA 1990)…gued.” The purpose of this rule is to put the opposing party on notice as to the grounds which the moving party will assert. See Cheshire v. Magnacard, Inc. 510 So. 2d 1231 (Fla. 2d DCA 1987); Swift Independent Packing Co. v. Basic Food Int’l, Inc., 461 So. 2d 1017 (Fla. 4th DCA 1984). Burger King claims, however, that there is sufficient evidence in the record to uphold the summary judgment based on the ground that Garrido’s advertising proposal is not novel, regardless of whether this court finds that certa…
-
Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So. 2d 1311 (Fla. 3d DCA 1985)…il Procedure 1.510(c) was not based on this defense as indeed, it could not have been, since affirmative defenses may not be raised for the first time on a motion for summary judgment. Swift Independent Packing Co. v. Basic Food International, Inc., 461 So. 2d 1017 (Fla. 4th DCA 1984); McIntyre v. Norman, 429 So. 2d 1296 (Fla. 3d DCA), rev. denied, 438 So. 2d 833 (Fla.1983); Boyd v. International Fidelity Insurance Co., 412 So. 2d 944 (Fla. 3d DCA 1982). The rules suggest, then, that the defense of illegality…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- McCABE v. Walt Disney World Co., 350 So. 2d 814 (Fla. 4th DCA 1977)
- Marilyn Kay Fernandez as Administratrix CTA of the Estate of Sam Kay v. Cunningham, 268 So. 2d 166 (Fla. 3d DCA 1972)
- Green v. State, 277 So. 2d 29 (Fla. 1st DCA 1973)
- Spinner v. Wainer, 430 So. 2d 595 (Fla. 4th DCA 1983)