GUY M. TUNNELL, SHERIFF OF BAY COUNTY, FLORIDA, APPELLANT,
v.
ROBERT WAYNE HICKS, APPELLEE

Fla. 1st DCA | 1991-02-06
No. 90-1539
NIMMONS and ZEHMER, JJ., concur.
574 So. 2d 264 Florida District Court of Appeal, First District (1991) Positive Treatment
Cited by 9 cases

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Holding

The court held that while summary judgment for conversion was proper, the award of prejudgment interest was not permissible against a state subdivision.


Headnotes

[1] A subdivision of the state is not permitted to award prejudgment interest in tort claims against it.

[2] Exhibits submitted in support of a motion for summary judgment must be authenticated and made part of an affidavit to be considered by the court.

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Facts & Procedural History

Hicks' money was seized by a deputy sheriff during an arrest, and later allegedly turned over to the DEA. Hicks sued the sheriff for conversion, and t…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Sheriff Guy Tunnell, appellant, seeks review of an order entered in an action for conversion granting appellee Robert Hicks’ motion for summary judgment, which required Tunnell to return money improperly seized from Hicks, together with interest.

We reject without discussion Tunnell’s contentions that the court lacked subject-matter jurisdiction over the conversion claim, and that Hicks did not obtain a proper denial of the claim, as required by Section 768.28(6)(a), Florida Statutes (1989).

We reverse, however, the award of prejudgment interest, for the reason that section 768.28(5) does not permit such awards in tort claims against a subdivision of the state. We otherwise affirm the summary judgment, in that Tunnell failed to properly present evidence that would have raised a genuine issue of material fact.

On January 27, 1989, Hicks was arrested on a Gulf County capias and taken to the office of Deputy Frank McKeithen at the Bay County Sheriff’s Office. In his deposition, McKeithen testified that when Hicks was found, he was carrying $16,655.00 in cash. McKeithen seized the money and released Hicks later that day. Hicks was not arrested on any charges from the Bay County Sheriff’s Office, nor were any charges ever filed against him for any crime associated with the money.1 McKéithen stated that he believed he had probable cause to seize Hicks’ money, but he would not divulge the basis for his belief because it related to an ongoing criminal investigation, about which he would not elaborate. McKeithen testified that he was aware of a rumor that the cash had been turned over to the federal Drug Enforcement Agency (DEA) and customs because of the ongoing investigation.

After Hicks sued Tunnell2 for conversion, Tunnell filed a motion to dismiss, alleging that DEA had seized the money, and that the sheriff's office was therefore not the proper party to sue for conversion. He attached to his motion a copy of a letter he had earlier sent to' Hicks following Hicks’ demand for return of the money in which Tunnell stated:

The money in question was seized by my personnel pursuant to 21 USC 881 and the custody thereof has since been relinquished to the United States Drug Enforcement Agency (DEA) as it apparently relates to an ongoing investigation conducted by that agency. I further understand that DEA has filed a Federal forfeiture proceeding in this matter and suggest that you contact their office should you have any additional questions.

The trial court denied Tunnell’s motion.

Following discovery, Hicks moved for summary judgment. After the hearing was completed, but before summary judgment was entered, Tunnell mailed an un-sworn document to the trial judge entitled, “Declaration of Forfeiture,” which purports to have been issued by the DEA. The document’s signatory states that DEA had seized $16,655.00 from Hicks and that the money had been forfeited to the United States. Based upon the above record, the court granted Hicks’ motion.

In affirming the entry of summary judgment for Hicks, we observe that the two documents described above might have raised an issue of fact had they been properly submitted pursuant to Florida Rule of Civil Procedure 1.510. The Declaration of Forfeiture was unauthenticated and was not filed prior to the hearing, pursuant to rule 1.510(c).

The copy of the letter from Tunnell was an unauthenticated exhibit attached to the motion to dismiss, whereas the provisions of rule 1.510(c) require the court, in determining the propriety of a motion for summary judgment, to consider only “pleadings, depositions, answers to interrogatories and admissions on file together with affidavits.” See Fish Carburetor Corp. v. Great Am. Ins. Co., 125 So. 2d 889, 892 (Fla. 1st DCA 1961).

Tunnell failed to attach either document to affidavits that presumably would have ensured their admissibility. See DeMesme v. Stephenson, 498 So. 2d 673, 675 (Fla. 1st DCA 1986).

Accord C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2722 (1983) (under the comparable federal rule, exhibits may be considered only if authenticated by and made part of an affidavit); Edward B. Marks Music Corp. v. Stasny Music Corp., 1 F.R.D. 720 (S.D.N.Y.1941) (court correctly did not consider letter that was neither authenticated nor attached to affidavit).

Although Sheriff Tunnell apparently had sufficient evidence to thwart the motion for summary judgment, he did not file it in a manner that would permit the trial court to consider it pursuant to the provisions of the rule. We therefore AFFIRM in part, REVERSE in part, and REMAND with directions to vacate the award of prejudgment interest.

NIMMONS and ZEHMER, JJ., concur. . McKeithen did not know whether the Gulf County capias was withdrawn.

. Hicks also sued McKeithen and the Bay County Board of County Commissioners, but the court dismissed these parties.


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Cited By

  • Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783 (Fla. 2d DCA 2011)
    …were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment. Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997); Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (explaining that court could not consider certain documents in its summary judgment decision because “Tunnell failed to attach either document to affidavits that presumably would have ensured their admissibility”). At the s…
  • F.E. Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla. 1st DCA 1998)
    …an amended complaint. A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991). Because Sarasota, Inc. failed to establish its status as legal owner and holder of the note, or to establish the assignment from the FDIC, the trial court acted prematurely in basing its ruling on D’Oench. REVERSED and REM…
  • Daeda v. Blue Cross & Blue Shield OF Fla., Inc., 698 So. 2d 617 (Fla. 2d DCA 1997)
    …cate that the appellee might be entitled to summary judgment, it is not necessary for us to decide that question because the material was not properly authenticated and without it a material issue of fact remains to be decided. See Tunnell v. Hicks, 574 So. 2d 264 (Fla. 1st DCA 1991). The documentation concerning the appellant’s social security disability claim would not be admissible at trial because it was not properly authenticated. Therefore, the trial court could not properly consider that information i…

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