PHILLIPS 66 COMPANY, APPELLANT,
v.
INTERNATIONAL TELE-COIN COMPANY, INC., A FLORIDA CORPORATION, APPELLEE
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Phillips 66 Company appeals a summary judgment entered in favor of International Tele-Coin Company in a breach of contract action involving pay telephone installation agreements. The court reversed, holding that Phillips was denied adequate notice and a fair opportunity to respond to the summary judgment motion, violating due process and the Florida Rules of Civil Procedure.
The trial court erred in granting summary judgment because Phillips was deprived of adequate notice and a fair opportunity to prepare a response, violating both the procedural rule requiring twenty days' notice and due process. Summary judgment is precluded when genuine issues of material fact exist.
[1] Summary judgment cannot be granted on shorter notice than that provided by rule, as it constitutes reversible error.
[2] Due process requires that a non-moving party have a full and fair opportunity to meet the proposition that there is no genuine issue of material fact before summary judgm…
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Join FLexlaw to unlock all legal intelligence“it would be reversible error to grant relief on shorter notice”
Florida Rule of Civil Procedure 1.510(c) committee notes establishing that the twenty-day notice requirement is mandatory and its violation constitutes reversible error
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Join FLexlaw to unlock all legal intelligenceITC sued Phillips for breach of five contracts governing pay telephone installation and operation at Phillips service stations. ITC filed a summary ju…
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BASKIN, Judge.
Phillips 66 Company [Phillips] appeals the entry of final summary judgment on the issue of liability in an action instituted by International Tele-Coin Company [ITC] to recover damages for breach of contract. We reverse.
ITC sued Phillips for damages stemming from Phillips’ alleged breach of five contracts governing the installation and operation of pay telephones at five Phillips service stations. On January 4, 1990, ITC filed a motion for summary judgment and notice of hearing for February 19, 1990. ITC rescheduled the hearing for January 30, 1990, mailing the notice of hearing on January 24, 1990. Counsel for Phillips received the notice of hearing on January 26, 1990, and immediately requested a continuance. The trial court denied the motion and, on January 30, 1990, granted summary judgment in favor of ITC. Phillips filed a timely appeal.
Florida Rule of Civil Procedure 1.510(c) provides that a motion for summary judgment shall be served at least twenty days prior to the hearing date. The committee notes to the rule state that “it would be reversible error to grant relief on shorter notice.” (Emphasis supplied). Additionally, this court held in Fernandez v. Moreno, 176 So. 2d 587, 589 (Fla. 3d DCA 1965) (quoting from John K. Brennan Co. v. Central Bank & Trust Co., 164 So. 2d 525 (Fla. 2d DCA 1964)):
Due proceess [sic] requires that before a summary judgment is authorized to be entered against a non-moving party, it must be shown that he has had a full and fair opportunity to meet the proposition that there is no genuine issue of a material fact and that the party for whom the summary judgment is rendered or ordered to be entered is entitled thereto as a matter of law.
In the case before us, Phillips’ counsel reasonably expected that the hearing set for February 19th would not be held until that date and scheduled discovery accordingly. ITC’s rescheduling of the hearing to a date twenty days earlier than originally planned, providing only four days notice to opposing counsel, left Phillips inadequate time to prepare for the hearing. The trial court erred when it denied Phillips’ motion for continuance and deprived Phillips of its due process rights. Furthermore, the presence of genuine issues of material fact precludes the entry of summary judgment, Holl v. Talcott, 191 So. 2d 40 (Fla.1966). Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Natiello v. Winn-Dixie Stores, Inc., 203 So. 3d 209 (Fla. 4th DCA 2016)…of an opportunity to be heard at a hearing where counsel is a few minutes late, there is a patently reasonable explanation for the tardy appearance, and there is no showing of prejudice or willful misconduct); Phillips 66 Co. v. Int’l Tele-Coin Co., 564 So. 2d 1219, 1220 (Fla. 3d DCA 1990) (due process requires that before summary judgment is entered, the non-moving party must have a full and fair opportunity to contest the proposition that there is no genuine issue of material fact); see also Carmona v. Wal-M…
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Carter v. Palm Beach Cnty. Sheriff's Off. (15th Cir. Ct. App. Div. 2002)…e a full and fair opportunity to contest the proposition that there is no genuine issue of material fact...." Natiello v. Winn- Page 3 of 7 Dixie Stores, Inc., 203 So. 3d 209, 210 (Fla. 4th DCA 2016) (citing Phillips 66 Co. v. Int'l Tele- Coin Co., 564 So. 2d 1219, 1220 (Fla. 3d DCA 1990)). Moreover, "[a]n incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically." Garrett v. Pratt, 128 So. 3d 928, 929…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- John K. Brennan Co. v. Cent. Bank & Tr. Co., 164 So. 2d 525 (Fla. 2d DCA 1964)
- Fernandez v. Moreno, 176 So. 2d 587 (Fla. 3d DCA 1965)