DON T. KOZICH, APPELLANT,
v.
HARTFORD INSURANCE COMPANY OF MIDWEST, A FLORIDA CORPORATION, AND STUART L. STEIN, INDIVIDUALLY, APPELLEES
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Appellant Kozich sued his insurance company and Stuart L. Stein for car damage. The trial court granted Stein's summary judgment motion without conducting a hearing, dismissing Kozich's claim. The appellate court reversed, holding that Florida Rule 1.510(c) requires a hearing on summary judgment motions and denying a party the opportunity to be heard constitutes a denial of due process.
Florida Rule 1.510(c) mandates a hearing on summary judgment motions and does not grant the trial court discretion to decide whether a hearing is required. Denying a party a hearing on a summary judgment motion that determines liability constitutes a denial of due process.
[1] A trial court commits a due process violation by denying a party a hearing on a motion for summary judgment that determines the party's right to relief.
[2] A trial court's order granting summary judgment without providing the adverse party an opportunity to be heard is reversible error.
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“Rule 1.510(c) provides for a hearing and specifies the time periods for filing and responding to a motion for summary judgment based upon the date fixed for the hearing. The rule does not provide the trial court with discretion to decide whether 'a hearing is required.'”
Establishes that the trial court has no discretion to omit a hearing on summary judgment motions under the Florida Rules of Civil Procedure.
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Join FLexlaw to unlock all legal intelligenceKozich filed suit against his insurance company and Stuart L. Stein for damage to his car. After settling with the insurance company, Stein moved for …
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DELL, Judge.
Appellant filed suit against his insurance company and appellee for damage to his car. The trial court, pursuant to a settlement agreement, dismissed appellant’s complaint against his insurance company. On July 25, 1991, appellee, Stuart L. Stein, moved for summary judgment against appellant. On July 30, the trial court entered the following order:
This Court has received Defendant Stuart Stein’s Motion for Summary Judgment dated July 25, 1991 and accordingly it is ordered as follows:
1. That Plaintiff shall respond in writing within 20 days from the date of this order. A copy thereof shall be furnished to opposing counsel and directly to the Court (Room 998).
2. Parties may submit photocopies of case authority relied upon in their motion or response. Since photocopies of cases will not be retained by the Court subsequent to ruling, the citations must be noted within the written motion or response. 3. After the expiration of 20 days from the date of this order or upon receipt of the response, whichever occurs first, the Court will rule on the Motion. Court will advise the parties in the event a hearing is required.
4. If the moving party has not submitted two sets of return stamped envelopes for all counsel with the Motion, they shall submit at this time one set of stamped envelopes.
DONE AND ORDERED....
(emphasis added). On August 16, appellant filed a response to appellee’s summary judgment motion. On August 23, the trial court, without a hearing, entered a final order that granted appellee’s motion for summary judgment and dismissed appellant’s claim with prejudice. We reverse.
Rule 1.510(c), Florida Rules of Civil Procedure, provides in pertinent part:
(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing.
Rule 1.510(c) provides for a hearing and specifies the time periods for filing and responding to a motion for summary judgment based upon the date fixed for the hearing. The rule does not provide the trial court with discretion to decide whether “a hearing is required.” Judge Vitale’s form order does not comply with rule 1.510(c) and we disapprove of its use. An order granting summary judgment on liability determines a party’s right to the relief requested and to deny either party a hearing must be construed as a denial of due process. See Berchtold v. Griffin, 592 So. 2d 377 (Fla. 4th DCA 1992); Mondestin v. Duval Fed. Sav. and Loan Assoc., 500 So. 2d 580 (Fla. 4th DCA 1986); Wagner v. Vigor Island Corp., 443 So. 2d 469 (Fla. 5th DCA1984).
We express no opinion as to the merits of appellee’s motion for summary judgment. Appellate review of the merits would be premature given the trial court’s failure to provide appellant an opportunity to be heard.
Appellant also argues the trial court erred when it denied his motion to amend his second amended complaint and that he should be granted leave to add Stuart L. Stein, P.A., as a co-defendant. Appellant did not make this specific argument below and, therefore, cannot successfully offer it for the first time on appeal. Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982). Accordingly, we affirm the trial court’s order denying appellant’s motion to amend his second amended complaint. We reverse the. trial court’s order granting a summary final judgment and remand this cause for further proceedings.
REVERSED and REMANDED.
GLICKSTEIN, C.J., and STONE, J., concur.
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THE Florida BAR v. Rapoport, 845 So. 2d 874 (Fla. 2003)…y judgment orders is de novo. See Florida Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla.2001). Lastly, we are aware that rule 1.510(c) has been interpreted to require hearings on motions for summary judgments. See Kozich v. Hartford Ins. Co. of Midwest, 609 So. 2d 147, 148 (Fla. 4th DCA 1992). We deem it unnecessary to reach the issue of whether rule 1.510(c) mandates a hearing before summary judgment may be entered in a civil proceeding if there has been adequate notice and an opportunity to be heard, and the p…
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Chiu v. Wells Fargo Bank, 242 So. 3d 461 (Fla. 3d DCA 2018)…ion.” State Farm Fire & Cas. Co. v. Lezcano, 22 So. 3d 632, 634 (Fla. 3d DCA 2009). Indeed, a trial court does not have discretion to decide whether to conduct a hearing on a motion for summary judgment. Kozich v. Hartford Ins. Co. of Midwest, 609 So. 2d 147, 148 (Fla. 4th DCA 1992) (“[Rule 1.510(c)] does not provide the trial court with discretion to decide whether ‘a hearing is required.’”). Thus, where a trial court grants final summary judgment without conducting a hearing pursuant to rule 1.510(…
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City OF Riviera Beach v. Shillingburg, 659 So. 2d 1174 (Fla. 4th DCA 1995)…e note, however, that this argument had not been squarely presented to the trial court below and, as such, we would be reluctant to reverse on this issue alone. See McGurn v. Scott, 596 So. 2d 1042 (Fla.1992); Kozich v. Hartford Ins. Co. of Midwest, 609 So. 2d 147 (Fla. 4th DCA 1992). However, landowners have not moved to strike the Department of Community Affairs brief or otherwise argue that the argument has been waived. Because it is a significant issue and because this controversy may inevitably be back i…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shepard v. State, 411 So. 2d 363 (Fla. 4th DCA 1982)
- Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982)
- Mondestin v. Duval Fed. Sav. & Loan Ass'n, 500 So. 2d 580 (Fla. 4th DCA 1986)
- State v. White, 443 So. 2d 469 (Fla. 2d DCA 1984)
- Berchtold v. Griffin, 592 So. 2d 377 (Fla. 4th DCA 1992)