DAVID A. WIZIKOWSKI, APPELLANT,
v.
HILLSBOROUGH COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA; RICHARD AKE, CLERK OF THE CIRCUIT COURT; JACQUELINE A. BARFIELD; UNIVERSITY COMMUNITY HOSPITAL, INC., D/B/A UNIVERSITY COMMUNITY HOSPITAL; AND FORD MOTOR CREDIT COMPANY, APPELLEES
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Wizikowski appeals summary judgment granted in favor of Hillsborough County in an interpleader action over tax deed sale proceeds. The court reversed because the County filed a motion for summary judgment without providing the required twenty-day notice of hearing mandated by Florida Rule of Civil Procedure 1.510(c).
The court held that it was error for the trial court to hear and grant the County's summary judgment motion because no notice of hearing was ever served, violating the twenty-day notice requirement of Rule 1.510(c). While a trial court may theoretically enter summary judgment in favor of a non-moving party, this is not a generally accepted practice, especially in complex cases with multiple issues.
[1] A trial court commits error by granting a motion for summary judgment without providing the opposing party with the required notice of the hearing.
[2] Florida Rule of Civil Procedure 1.510(c) requires that a motion for summary judgment be filed at least twenty days prior to the time fixed for the hearing on the motion.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.510(c) requires a motion for summary judgment to be filed at least twenty days prior to the time fixed for the hearing on the motion.”
Establishes the mandatory procedural requirement that was violated in this case
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Join FLexlaw to unlock all legal intelligenceClerk of Circuit Court Richard Ake sold real property at a tax deed sale. Both Wizikowski and Hillsborough County claimed an interest in the proceeds …
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QUINCE, Judge.
David Wizikowski (Wizikowski) appeals the trial court’s entry of a summary judgment in favor of Hillsborough County (the County). We reverse because the County did not give notice of hearing pursuant to Florida Rule of Civil Procedure 1.510(c).
Appellee, Richard Ake, Clerk of the Circuit Court in Hillsborough County, sold certain real property in Hillsborough County at a tax deed sale. The records disclosed that Wizikowski and the County may have an interest in the proceeds from the sale. They were notified of both the sale and the procedures to follow to claim an interest in the proceeds. Both responded and claimed the entire proceeds. Richard Ake filed a complaint for interpleader setting forth the amount of proceeds, the claims made against the proceeds, and requesting the court to require the claimants to litigate against each other. Wizikowski and the County answered the complaint, and Wizikowski filed a cross-claim against the County. The County answered the cross-claim, denying all allegations adverse to its interest.
The interpleader was ordered by the trial court, and normal discovery was undertaken by the parties. On February 4, 1994, Wizi-kowski filed a motion for summary judgment with supporting documents and affidavits. A hearing on this motion was scheduled for March 30, 1994, and notice of the hearing was served on the parties on February 22, 1994. On March 14, 1994, the County filed a motion for summary judgment without supporting documents or affidavits. No notice of hearing on this motion was ever served. At the hearing on March 30, 1994, the trial court granted the County’s motion for summary judgment.
Florida Rule of Civil Procedure 1.510(c) requires a motion for summary judgment to be filed at least twenty days prior to the time fixed for the hearing on the motion. In the instant case, no time was ever fixed for a hearing on the County’s motion. Thus, it was error 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, 554 So. 2d 1193 (Fla. 1st DCA 1989), rev. denied, 564 So. 2d 1087 (Fla.1990). However, this is not a generally accepted practice, especially in a case where there are a number of issues to be resolved. University of Miami v. Sosa, 629 So. 2d 172 (Fla. 3d DCA 1993).
There were a number of issues raised by the County’s summary judgment motion. Wizikowski did not have the opportunity to oppose the motion within five days of the hearing because notice of hearing was never served. Additionally, he argued at the March 30th hearing that he was not prepared to make his arguments in opposition to the motion. Under these circumstances, it was error for the trial court to grant the County’s motion for summary judgment.
We reverse and remand to the trial court for further proceedings consistent with this opinion.
CAMPBELL, A.C.J., and THREADGILL, J., concur.
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Otero v. Gomez, 143 So. 3d 1089 (Fla. 3d DCA 2014)…s 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 relief not requested by a party in the pleading. See Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013) (stating courts are unauthorized to gr…
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E & I, Inc. v. Excavators, Inc., 697 So. 2d 545 (Fla. 4th DCA 1997)…s, raising the insufficient notice. It is well settled that it is reversible error to grant a summary judgment pursuant to a motion which has not been served within the 20-day notice required by rule 1.510(c). See Wizikowski v. Hillsborough County, 651 So. 2d 1223 (Fla. 2d DCA 1995); Norton v. Gibson, 532 So. 2d 1325 (Fla. 1st DCA 1988); Brock v. G.D. Searle & Co., 530 So. 2d 428 (Fla. 1st DCA 1988); Parker v. Lower Florida Keys Hosp. Dist., 432 So. 2d 169 (Fla. 3d DCA 1983). In each of these cases, however,…
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Lincoln Nat'l Health & Cas. v. Mitsubishi Motor Sales, 778 So. 2d 392 (Fla. 5th DCA 2001)…dgment for the non-moving party, although not disallowed, is not a generally accepted practice. The better practice is to require the trial court 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…
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
- Lazar v. Allen, 347 So. 2d 457 (Fla. 2d DCA 1977)
- Se. Bank, N.A. v. H.P. Sapp, 554 So. 2d 1193 (Fla. 1st DCA 1989)
- Univ. OF Miami v. Sosa, 629 So. 2d 172 (Fla. 3d DCA 1993)
- Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992)
- Norton v. Gibson, 532 So. 2d 1325 (Fla. 1st DCA 1988)