MORT SHER, APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, APPELLEE
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Liberty Mutual sued North Bay Boat Works and Mort Sher to recover money on a draft. Sher failed to timely respond to a request for admissions, and Liberty obtained summary judgment based on the deemed admissions. The appellate court reversed, holding that the trial court erred in entering summary judgment because the record contained evidence contradicting the admissions and the court should have considered Sher's belated response on the merits.
The trial court erred in entering summary judgment. Although Sher failed to file a timely response to the request for admissions, the trial court should have considered his belated response and the contradictory evidence in the record. Summary judgment was inappropriate because material factual issues remained, and withdrawal of the technical admissions to allow presentation of the case on its evidentiary merits was warranted.
[1] Matters in unanswered requests for admissions are deemed admitted under Florida Rule of Civil Procedure 1.370(a).
[2] A party seeking relief from the effects of failing to timely respond to a request for admissions must file a proper motion for relief.
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Join FLexlaw to unlock all legal intelligence“The only support for the summary judgment was Sher's failure to file a timely response to the request for admissions. In all other pleadings and affidavits filed with the court prior to the entry of summary judgment, Sher alleged that he was not individually liable on the draft.”
Establishes that the sole basis for summary judgment was the procedural default, while the substantive record contradicted it.
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Join FLexlaw to unlock all legal intelligenceLiberty Mutual sued North Bay Boat Works and Mort Sher individually to recover money on a draft. Sher filed a motion to dismiss asserting he signed th…
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BASKIN, Judge.
Liberty Mutual Insurance Company [Liberty] sued North Bay Boat Works, Inc., [North Bay] and Mort Sher, individually, to recover money due on a draft. North Bay answered the complaint; Sher filed a motion to dismiss in which he asserted that the complaint did not state a cause of action against him individually because he had signed the draft solely in his representative capacity. That motion was never heard. The cause progressed, and Liberty served Sher with a request for admissions asking Sher specifically to admit that both Sher and North Bay were liable on the draft.
However, Sher neglected to respond to the request for admissions until approximately 60 days after Liberty served the request. In the interim, prior to the filing of Sher’s response, Liberty moved for summary judgment, citing the admissions as support for the motion.
The trial court did not rule on the motion for summary judgment until a month and a half after Sher filed his response. Despite the lateness of his response, Sher failed to ask the court for relief from the effects of Rule 1.370(a), Florida Rules of Civil Procedure, which deems admitted matters in unanswered requests for admissions, until after the summary judgment was entered. Instead, Sher sought modification of the trial court’s order to compel settlement to have the order reflect that in his individual capacity he was not properly a party. Following the trial court’s entry of final summary judgment, Sher commenced this appeal.
We reverse.
The only support for the summary judgment was Sher’s failure to file a timely response to the request for admissions. In all other pleadings and affidavits filed with the court 'prior to the entry of summary judgment, Sher alleged that he was not individually liable on the draft. These circumstances presented an issue of material fact for decision, and “the withdrawal of the technical admissions and acceptance of the belated response would serve to facilitate the presentation of the case on its evidentiary merits.” DeAtley v. McKinley, 497 So. 2d 962, 963 (Fla. 1st DCA 1986); Pelkey v. Commander Motel Corp., 510 So. 2d 965 (Fla. 4th DCA 1987); Melody Tours, Inc. v. Granville Market Letter, Inc., 413 So. 2d 450 (Fla. 5th DCA 1982); Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA 1978); Fla.R.Civ.P. 1.370(b); but see Morgan v. Thomson, 427 So. 2d 1134 (Fla. 5th DCA 1983) (relief from effect of admissions may not be granted unless party files a proper motion for relief).
Trial courts are required to look beyond the pleadings, to determine the propriety of entering summary judgment. Love; DeAtley; Melody Tours. Here, the record is replete with evidence contradicting the admissions created by Sher’s failure to file a timely response. Consequently, we hold that summary judgment is an inappropriate resolution, and the trial court erred in refusing to set it aside. Accordingly, we reverse the final summary judgment and remand to the trial court with directions to consider Sher’s response to the request for admissions. Reversed and remanded with instructions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Stembridge v. Mintz, 652 So. 2d 444 (Fla. 3d DCA 1995)…s motion, expressly stating that it was doing so based on Stembridge’s failure to respond to the requests for admis [*446] sion. Stembridge has appealed and we reverse. Procedurally, we believe that the rule in Sher v. Liberty Mutual Insurance Co., 557 So. 2d 638 (Fla. 3d DCA 1990) indicates that entry of summary judgment based solely on Stembridge’s failure to respond to requests for admissions was inappropriate. As set forth in Sher, “[tjrial courts are required to look beyond the pleadings to determine th…
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Jewell Sterling v. City OF W. Palm Beach & State Farm Fire & Cas. Co., 595 So. 2d 284 (Fla. 4th DCA 1992)…old that the trial court should not have used the technically deemed admission to support a final summary judgment. This is because the record was replete with evidence to the contrary of the supposed admission. Sher v. Liberty Mutual Insurance Co., 557 So. 2d 638 (Fla. 3d DCA 1990). The use of admissions obtained through a technicality should not form a basis to preclude adjudication of a legitimate claim. Sher. [*286] We reverse the final summary judgment and remand the case to the trial court for further p…
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Ramos v. Growing Together, Inc., 672 So. 2d 103 (Fla. 4th DCA 1996)…8). “The use of admissions obtained through a technicality should not form a basis to preclude adjudication of a legitimate claim.” Sterling v. City of West Palm Beach, 595 So. 2d 284, 285 (Fla. 4th DCA 1992); see also Sher v. Liberty Mut. Ins. Co., 557 So. 2d 638 (Fla. 3d DCA 1990). The trial court abused its discretion in failing to grant defendant relief from the admissions and in denying his request to amend his responses. Here, defendant timely filed a motion to grant relief from the admissions. Cf. Sin…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Melody Tours, Inc. v. Granville Mkt. Letter, Inc., 413 So. 2d 450 (Fla. 5th DCA 1982)
- Love v. Allis-Chalmers Corp., 362 So. 2d 1037 (Fla. 4th DCA 1978)
- Jackson v. State, 497 So. 2d 962 (Fla. 1st DCA 1986)
- Morgan v. Thomson, 427 So. 2d 1134 (Fla. 5th DCA 1983)
- Pelkey v. The Commander Motel Corp., 510 So. 2d 965 (Fla. 4th DCA 1987)