BUY-LOW SAVE CENTERS, INC., APPELLANT,
v.
DONALD GLINERT, ET AL., APPELLEES

Fla. 4th DCA | 1989-08-30
No. 87-0481
ANSTEAD and WARNER, JJ., concur.
547 So. 2d 1283 Florida District Court of Appeal, Fourth District (1989) Positive Treatment
Cited by 9 cases

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Synopsis

Buy-Low Save Centers sued the Glinerts for nonpayment of a promissory note with an acceleration clause. The trial court granted the Glinerts' motion in limine to exclude evidence that the Glinerts sold the business, which was the collateral triggering the acceleration clause. The appellate court reversed, holding that evidence of the sale was material to interpreting what constituted 'nonpayment' under the note and the offer of judgment, and that the motion in limine was improperly used as a disguised summary judgment motion.


Holding

The court held that evidence of the business sale was material and relevant to the damage calculation because it directly bore on whether the acceleration clause was triggered and thus what constituted 'nonpayment' under the note and offer of judgment. The trial court's granting of the motion in limine, which precluded this crucial evidence, was improper because it functioned as an unnoticed summary judgment on the damages issue in violation of Florida procedure.


Headnotes

[1] A motion in limine should not be used as an unwritten or unnoticed motion for partial summary judgment.

[2] Evidence of the sale of a business is material and relevant to the issue of "nonpayment" under a promissory note and an offer of judgment when the note contains an accele…

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Key Quotes

“In granting the motion in limine, the trial court erroneously ruled that the evidence of the sale of the business was immaterial and irrelevant to the issue of what constituted "nonpayment of the promissory note." To the contrary, the evidence went to the heart of the issue of what was contemplated by "nonpayment" under the terms of the promissory note and the offer of judgment.”

Establishes that evidence of the sale was material to interpreting the meaning of 'nonpayment' under the contractual documents.

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Facts & Procedural History

Buy-Low lent money to the Glinerts evidenced by a promissory note dated February 11, 1980, secured by a business. The note contained an acceleration c…

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Opinion of the Court
GUNTHER, Judge.

GUNTHER, Judge.

We reverse the trial court’s order granting the Glinerts’ motion in limine, as well as the final judgment awarding $16,093.28 in damages to Buy-Low Save Centers, Inc. (Buy-Low). Buy-Low sued Donald Gli-nert, et al. (Glinerts), alleging nonpayment of a promissory note and acceleration of the principal balance of the note. At the time the complaint was filed, the Glinerts had made no payments on the note from May 11, 1982, to May 10, 1986. Prior to the non-jury trial, the Glinerts tendered the following offer of judgment which was accepted by Buy-Low:

In final and complete satisfaction of all claims in the above case, Defendants, ... hereby accept as to the promissory note dated February 11, 1980 a judgment against them for nonpayment on the promissory note including taxable cost. (Emphasis added).

Although the trial court entered a partial summary judgment finding that the offer of judgment was binding on the parties, a dispute arose as to the precise amount of damages due Buy-Low for the “nonpayment of the promissory note.”

Buy-Low maintains that the entire balance of the note is due, not just the payments due for May 11, 1982, to May 10, 1986. According to Buy-Low, the acceleration clause of the promissory note was activated and the balance of the note became due when the Glinerts sold the business which was the object of the note. As Buy-Low points out, the note specifically provided that the balance of the note would be due if the business was-sold. Thus, Buy-Low asserts that once the Glinerts sold the business, the failure to pay Buy-Low the balance of the note constituted “nonpayment” within the terms of the promissory note and within the language of the offer of judgment. The Glinerts disagree with Buy-Low’s interpretation and assert that “nonpayment of the promissory note” refers only to payments they fail to make during the period from May 11, 1982, to May 10, 1986.

Based on their interpretation, the Gli-nerts filed a motion in limine moving to exclude all evidence that the business had been sold on the theory that it was immaterial and irrelevant to the issue of what constituted “nonpayment of the promissory note.” The trial court agreed and granted the Glinerts’ motion in limine. We reverse.

In granting the motion in limine, the trial court erroneously ruled that the evidence of the sale of the business was immaterial and irrelevant to the issue of what constituted “nonpayment of the promissory note.” To the contrary, the evidence went to the heart of the issue of what was contemplated by “nonpayment” under the terms of the promissory note and the offer of judgment.

Furthermore, we agree with Buy-Low’s assertion that the trial court’s grant of the Glinerts’ motion in limine was tantamount to an improper summary judgment on the issue of how the damages owed by the Glinerts were to be calculated. Generally, the purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial. Dailey v. Multicon Development, Inc., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982). However, where the motion is used to do more than merely exclude irrelevant or improper prejudicial evidence, the use of the motion begins to become improper. Thus, the courts have held that “trial courts should not allow motions in limine to be used as unwritten and unnoticed motions for partial summary judgment or motions to dismiss.” Brock v. G.D. Searle & Co., 530 So. 2d 428, 431 (Fla. 1st DCA 1988); Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986); Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982).

In the instant case, the order granting the motion in limine precluded Buy-Low from presenting relevant and material evidence crucial to the damage issue of what constituted non-payment under the terms of the promissory note and the offer of judgment. Thus, the court’s ruling on the motion in limine was the equivalent of a summary judgment on the issue of damages. Because the motion was not filed in accordance with the terms of Florida Rule of Civil Procedure 1.510 on summary judgments, the court’s ruling must be reversed. Brock v. G.D. Searle & Co., 530 So. 2d 428 (Fla. 1st DCA 1988).

REVERSED AND REMANDED.

ANSTEAD and WARNER, JJ., concur.


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Cited By

  • Fittipaldi USA, Inc. v. Helio Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005)
    …s testimony, FUSA’s counsel could have sought pretrial relief from the court by seeking to limit the scope of Miller’s testimony through a motion in limine or by having Miller designated as an expert witness. See Buy-Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283 (Fla. 4th DCA 1989)(pur-pose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial); Dailey v. Multicon Dev., Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982). Since attorney Mill…
  • Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992)
    …ari Lake East Condominium Ass’n, Inc., 547 So. 2d 198 (Fla.3d DCA 1989). The hearing on plaintiff’s motion in limine may not serve as a vehicle for presentation of an unnoticed motion for summary judgment.1 See Buy-Low Save Centers, Inc. v. Glinert, 547 So. 2d 1283, 1284 (Fla.4th DCA 1989); Brock v. G.D. Searle & Co., 530 So. 2d 428, 430-431 (Fla.lst DCA 1988); Rice v. Kelly, 483 So. 2d 559, 560 (Fla.4th DCA 1986); Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla.4th DCA 1982)); see also Lombard v. E…
  • …the contract and denied the contractor the opportunity to present any evidence for claims in excess of the designated allowance.1 [*881] A motion in limine is not a substitute for a motion for summary judgment. Buy-Low Save Centers, Inc. v. Glinert, 547 So. 2d 1283 (Fla. 4th DCA 1989). In this case, that is precisely what happened. The ruling must therefore be reversed. Sovereign Immunity — Immune or Not After the plaintiff presented evidence on the remaining claims, the Housing Authority moved for directed…

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