FIRST UNION NATIONAL BANK OF FLORIDA, APPELLANT,
v.
ROBIN D. MAURER AND RANDY MAURER, APPELLEES
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First Union National Bank appeals dismissal of its complaint against debtors who refinanced a stolen/damaged vehicle through First Union and then failed to pay the remaining balance after receiving an insurance settlement. The court reverses, finding the trial court improperly granted summary judgment sua sponte for the non-moving party (debtors) without a timely motion, and that remand for trial on damages is appropriate.
The trial court improperly dismissed the complaint without a timely motion and without First Union reasonably anticipating dismissal as a possible outcome. First Union established breach of the note and was entitled to at least partial summary judgment on liability, but the trial court properly found First Union's affidavit insufficient to establish entitlement to a deficiency judgment on damages, requiring remand for trial on the damages issue.
[1] A trial court may not dismiss a complaint with prejudice as a disposition of a hearing on a motion for summary judgment when the opposing party could not reasonably have…
[2] A trial court may grant summary judgment for a non-moving party, but the better practice is to require a timely motion.
Previewing 2 of 5 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“In effect, the trial court granted summary judgment for a non-moving party. While a court is not wholly without authority to do that, the better practice is to require a timely motion.”
Establishes that while courts have some authority to grant summary judgment sua sponte, the proper practice requires a timely motion, which was lacking here.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1987, Robin and Randy Maurer financed an automobile purchase through First Union. The security agreement contained an acceleration clause. The vehi…
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CURRY, CHARLES B., Associate Judge.
First Union National Bank of Florida (First Union) appeals the dismissal of its complaint against appellees Robin and Randy Maurer. We reverse.
In 1987 the appellees bought an automobile, financing the purchase through First Union. The security agreement contains an acceleration clause. It appears the car was stolen and/or damaged beyond repair at some point during the life of the note. A settlement was reached with the insurer for approximately $7300. Appellees thereafter failed or refused to pay the balance due on the note, prompting First Union’s complaint.
Initially appellees were represented by an attorney who, instead of submitting an answer and affirmative defenses, moved to dismiss the complaint. Before the motion to dismiss could be heard counsel was permitted to withdraw based on “irreconcilable differences.” Robin Maurer then filed a pro se answer. First Union moved for summary judgment and Maurer responded with an unsworn document captioned “testimony for hearing.” Maurer did not appear at the hearing on First Union’s motion. Nevertheless, the trial court entered an “order denying deficiency judgment” which also dismissed First Union’s complaint with prejudice.
In effect, the trial court granted summary judgment for a non-moving party. While a court is not wholly without authority to do that, the better practice is to require a timely motion. City of Pinellas Park v. Cross-State Utilities Co., 176 So. 2d 384 (Fla. 2d DCA), cert. denied, 183 So. 2d 214 (Fla.1965). Under the circumstances of the present case, First Union could not reasonably have anticipated dismissal of its complaint as a possible outcome of the hearing. Accordingly, such a disposition of First Union’s complaint was improper. See, e.g., John K. Brennan Co. v. Central Bank & Trust Co., 164 So. 2d 525 (Fla. 2d DCA 1964); Jockey Club, Inc. v. Blake, 297 So. 2d 44 (Fla. 3d DCA 1974).
First Union further argues that it is entitled to summary judgment. To a limited extent we agree. The motion and supporting exhibits clearly establish Maurer’s breach of the note. Although Maurer's pro se answer may have attempted to raise material issues of fact, partial summary-judgment for First Union would have been appropriate since its pleadings were not countered by competent evidence. Roberts v. Stokley, 388 So. 2d 1267 (Fla. 2d DCA 1980), rev. denied, 394 So. 2d 1153 (Fla.1981). The trial court’s disposition is not necessarily inconsistent with this conclusion. Implicit in the term “deficiency judgment” is a finding that liability was not an issue in the case. See Weiner v. American Petrofina Marketing, Inc., 482 So. 2d 1362 (Fla.1986); Ford Motor Credit Co. v. Jones, 584 So. 2d 205 (Fla. 2d DCA 1991). Instead, the wording of the final order indicates the court was not satisfied that First Union had proven its entitlement to additional money damages above and beyond the amount of the insurance settlement.
In support of its claim to additional compensation First Union attached a bank officer’s affidavit. We have examined this affidavit and are not persuaded that the trial court erred in finding it insufficient on its face. Having reached that conclusion, however, the proper course for the trial court would have been to deny First Union’s motion and set the case for trial on the issue of damages, rather than dismiss the complaint. Daniel Laurent, Inc. v. Coral Television Corp., 431 So. 2d 1047 (Fla. 3d DCA 1983).
Reversed.
FRANK, A.C.J. and THREADGILL, J., concur.
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Town OF Lauderdale-By-The-Sea v. Meretsky, 773 So. 2d 1245 (Fla. 4th DCA 2000)…y judgment for the Meretskys even though they did not file a motion for summary judgment. While the court is not wholly without authority to do that, the better practice is to require a timely motion. See First Union Nat’l Bank of Florida v. Maurer, 597 So. 2d 429 (Fla. 2nd DCA, 1992); City of Pinellas Park v. Cross-State Utils. Co., 176 So. 2d 384 (Fla. 2nd DCA 1965). We need not decide if this was appropriate here because we reverse the summary judgment for the Meretskys on other grounds.…
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Thomas v. Smith, 882 So. 2d 1037 (Fla. 2d DCA 2004)…er certain circumstances, enter a summary judgment in favor of a nonmoving party. See Carpineta v. Shields, 70 So. 2d 578, 574 (Fla.1954). Nevertheless, the better practice is to require a timely motion. See First Union Nat’l Bank of Fla. v. Maurer, 597 So. 2d 429, 430 (Fla. 2d DCA 1992); City of Pinellas Park v. Cross-State Utils. Co., 176 [*1043] So. 2d 384, 386 (Fla. 2d DCA 1965). The entry of a summary judgment for the non-moving party is not appropriate if the party against whom the summary judgment is e…
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Lincoln Nat'l Health & Cas. v. Mitsubishi Motor Sales, 778 So. 2d 392 (Fla. 5th DCA 2001)…ourt to rule upon Lincoln National’s pending summary judgment motion. See Wizikowski v. Hillsborough County, 651 So. 2d 1223 (Fla. 2d DCA 1995); Univ. of Miami v. Sosa, 629 So. 2d 172 (Fla. 3d DCA 1993); First Union Nat’l. Bank of Florida v. Maurer, 597 So. 2d 429 (Fla. 2d DCA 1992). Accordingly, we reverse the summary judgment entered against Lincoln National and remand this matter to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. COBB, PETERSON, and PALMER, JJ…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weiner v. Am. Petrofina Mktg., Inc., 482 So. 2d 1362 (Fla. 1986)
- John K. Brennan Co. v. Cent. Bank & Tr. Co., 164 So. 2d 525 (Fla. 2d DCA 1964)
- City OF Pinellas Park v. Cross-State Utils. Co., 176 So. 2d 384 (Fla. 2d DCA 1965)
- The Jockey Club, Inc. v. Alf H. Blake, 297 So. 2d 44 (Fla. 3d DCA 1974)
- Daniel Laurent, Inc. v. Coral Television Corp., 431 So. 2d 1047 (Fla. 3d DCA 1983)
- William T. Roberts as Pinellas Cnty. Sheriff v. Stokley, 388 So. 2d 1267 (Fla. 2d DCA 1980)
- Cross State Utils. Co. v. City of Pinellas Park, 183 So. 2d 214 (Fla. 1965)
- Dasher v. State, 183 So. 2d 214 (Fla. 1965)
- Ford Motor Credit Co. v. Jones, 584 So. 2d 205 (Fla. 2d DCA 1991)