THOMAS S. FOUTS, APPELLANT,
v.
JAMES W. BOWLING, 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.
Thomas Fouts appeals a summary judgment entered in favor of defendant James Bowling in a legal malpractice action. The Florida Third District Court of Appeal reversed, holding that the trial court improperly entered summary judgment without providing adequate notice to the plaintiff, as the motion was raised sua sponte during a hearing on motions in limine rather than through proper notice procedures.
A trial court's entry of summary judgment without appropriate notice is improper regardless of whether the court considered the motion for summary judgment on its own motion or at the instigation of counsel. A hearing on motions in limine may not serve as a vehicle for presentation of an unnoticed motion for summary judgment.
[1] A trial court may not enter summary judgment without providing the parties with adequate notice.
[2] A hearing on a motion in limine cannot serve as a vehicle for the presentation of an unnoticed motion for summary judgment.
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“The trial court's failure to provide appropriate notice renders improper the entry of summary judgment regardless of whether the trial court considered the 'motion for summary judgment' on its own motion or at the instigation of defense counsel.”
Establishes the core holding that proper notice is mandatory for summary judgment regardless of who initiated the motion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDuring trial preparation, the trial court held a hearing on plaintiff Fouts's motions in limine regarding admissibility of damage evidence. Neither pa…
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 Legal Malpractice cases and more on FLexlaw
PER CURIAM.
Thomas Fouts appeals a final judgment in favor of defendant James Bowling entered in a legal malpractice action. We reverse.
When counsel for both parties appeared for trial, the trial court conducted a hearing on several motions in limine filed by plaintiff seeking rulings on the admissibility of certain damage evidence. Neither party had filed a motion for summary judgment. The court ruled on one motion and requested legal memoranda on several issues. After considering the memoranda, the trial court entered final summary judgment in defendant’s favor. The trial court’s failure to provide appropriate notice renders improper the entry of summary judgment regardless of whether the trial court considered the “motion for summary judgment” on its own motion or at the instigation of defense counsel. Fruhmorgen v. Watson, 490 So. 2d 1032 (Fla.2d DCA 1986); Fla.R.Civ.P. 1.510(c). E.g., Gildred v. Alverde, 500 So. 2d 307 (Fla.3d DCA 1986); Muncey v. Star Brite Distributors, Inc., 378 So. 2d 1326, 1327 (Fla.3d DCA 1980); Moseley v. Bi-Lo Supermarket, Inc., 341 So. 2d 222 (Fla.3d DCA 1976); see Barnett Bank v. All Tech, Inc., 588 So. 2d 680 (Fla.3d DCA 1991); Epic Metals Corp. v. Samari 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. Executive Elevator Serv., 545 So. 2d 453 (Fla.3d DCA 1989). We therefore reverse the final judgment.2
Reversed and remanded.
. Plaintiff did not agree to or invite this procedure. See Whitney v. Brown, 588 So. 2d 681 (Fla.3d DCA 1991); White v. Soni, 550 So. 2d 75 (Fla.3d DCA 1989).
. If this cause survives a proper summary judgment motion, Fouts will be entitled to a jury trial. See Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 563-568, 110 S.Ct. 1339, 1344-1346, 108 L.Ed.2d 519, 526-530 (1990); Woods v. Dunlop Tire Corp., 673 F.Supp. 117, 120 (W.D.N.Y.1987); e.g., Fogel v. Mirmelli, 413 So. 2d 1204 (Fla.3d DCA 1982).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Connell v. Cap. City P'rs, LLC, 932 So. 2d 442 (Fla. 3d DCA 2006)…g or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process. Khan v. Dep’t of Revenue, 901 So. 2d 992, 992 (Fla. 4th DCA 2005); Grandini v. Carizo, 891 So. 2d 1216 (Fla. 3d DCA 2005); Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992); Devaney v. Solitron Devices, Inc., 564 So. 2d 1229 (Fla. 4th DCA 1990); Epic Metals Corp. v. Samari Lake E. Condo. Ass’n, Inc., 547 So. 2d 198 (Fla. 3d DCA 1989); Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988). As note…
-
Wizikowski v. Hillsborough Cnty., 651 So. 2d 1223 (Fla. 2d DCA 1995)…r for the trial court to hear and determine the County’s motion without giving Wizikowski the required twenty day notice. See Lazar v. Allen, 347 So. 2d 457 (Fla. 2d DCA 1977); Norton v. Gibson, 532 So. 2d 1325 (Fla. 1st DCA 1988); Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA), rev. denied, 606 So. 2d 1164 (Fla.1992). The County argues a trial court may enter summary judgment in favor of a party opposing a summary judgment even when no cross-motion for summary judgment has been filed. Southeast Bank v. Sapp…
-
Otero v. Gomez, 143 So. 3d 1089 (Fla. 3d DCA 2014)…the 20-day notice requirement.”). As additional grounds for reversal, we note that it is well settled that a hearing on a motion in limine “may not serve as a vehicle for presentation of an unnoticed motion for summary judgment.” Fouts v. Bowling, 596 So. 2d 95, 95 (Fla. 3d DCA 1992); see also Connell v. Cap. City Partners, LLC, 932 So. 2d 442, 444 (Fla. 3d DCA 2006); Wizikowski v. Hillsborough Cnty., 651 So. 2d 1223 (Fla. 2d DCA 1995). Also, it is well settled that a court is without authority to grant r…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Chauffeurs v. Terry, 494 U.S. 558 (U.S. 1990)
- Epic Metals Corp. v. Samari Lake E. Condo. Ass'n, Inc., 547 So. 2d 198 (Fla. 3d DCA 1989)
- Fogel v. Mirmelli, 413 So. 2d 1204 (Fla. 3d DCA 1982)
- Lombard v. Executive Elevator Serv., Inc., 545 So. 2d 453 (Fla. 3d DCA 1989)
- Dailey v. Multicon Dev., Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982)
- Brock v. G.D. Searle & Co., 530 So. 2d 428 (Fla. 1st DCA 1988)
- Muncey v. Star Brite Distribs., Inc., 378 So. 2d 1326 (Fla. 3d DCA 1980)
- Moseley v. Bi-Lo Supermarket, Inc., 341 So. 2d 222 (Fla. 3d DCA 1976)
- Fruhmorgen v. Watson, 490 So. 2d 1032 (Fla. 2d DCA 1986)
- LAW Offs. OF Philip Auerbach v. Robert M. Sussman LAW Offs., 483 So. 2d 559 (Fla. 3d DCA 1986)