THE CITY OF COOPER CITY, APPELLANT,
v.
SUNSHINE WIRELESS COMPANY, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that the trial court erred in granting summary judgment based on breach of contract and rescission without proper notice to the appellant.
Appellant sued appellee for breach of an annexation agreement and rescission. Appellee moved for summary judgment, arguing the contract was void ab in…
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PER CURIAM.
This appeal arises out of an action for breach of an annexation agreement and rescission. After the pleadings were closed and discovery had been taken, appellee moved for summary judgment. Appellee asserted in its motion that the contract was void ab initio, but did not raise the breach of contract issue.
Although the trial court held that the contract was not void or voidable, it found that appellant had breached the contract and ordered rescission. Appellant contends that the trial court erred in entering summary judgment based on breach of contract and rescission because appellant did not have notice that these issues would be dealt with at the hearing. We agree and reverse.
Florida Rule of Civil Procedure 1.510(c) requires a party seeking summary judgment to “state with particularity the grounds upon which [the motion] is based and the substantial matters of law to be argued.” This rule is designed to prevent “ambush” by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing. Swift Indep. Packing Co. v. Basic Food Int’l, Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984). Since appellant did not receive notice that the issues of breach of contract and the related entitlement to rescission would be addressed, it had no opportunity to prepare and to present evidence on the issues actually adjudicated by the trial court.
Accordingly, we reverse and remand this cause with leave for the trial court to reconsider the issues of breach of contract and rescission after appellant has been afforded proper notice and opportunity to be heard.
REVERSED and REMANDED.
DELL, C.J., and WARNER and PARIENTE, JJ., concur.
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Ginnifer GEE v. U.S. Bank Nat'l Ass'n, 72 So. 3d 211 (Fla. 5th DCA 2011)…So. 2d 1137, 1138 (Fla. 3d DCA 1991). The purpose of this rule is “to prevent ‘ambush’ by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995). “It is reversible error to enter summary judgment on a ground not raised with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So. 2d 1091, 1093 (Fla. 4th DCA 2006). As Ms. Gee contends, U.S. Bank’s summary…
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Williams v. Bank OF Am. Corp., 927 So. 2d 1091 (Fla. 4th DCA 2006)…Fla. 2d DCA 2001). It is reversible error to enter summary judgment on a ground not raised with particularity in the motion. See id.; Deluxe Motel, Inc. v. Patel, 727 So. 2d 299, 301 (Fla. 5th DCA 1999); City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995); George G. Sharp, Inc. v. Doric Marine, Inc., 544 So. 2d 228 (Fla. 3d DCA 1989); Cheshire v. Magnacard, Inc., 510 So. 2d 1231, 1234 (Fla. 2d DCA 1987). In applying the rule, the trial court should take a strict reading of th…
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Deluxe Motel, Inc. v. Natverlal K. Patel & Kalavati N. Patel, 727 So. 2d 299 (Fla. 5th DCA 1999)…substantial matters of law to be argued.” This rule is designed to prevent “ambush” by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing. The City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283 (Fla. 4th DCA 1995). Accordingly, the trial court erred to the extent that, in entering judgment for the sellers, it relied on the arguments made at the hearing but not in the motion. See Gulf Insurance Co. v. Stofman, 664 So. 2d 1083 (Fla. 4th DCA…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Swift Indep. Packing Co. v. Basic Food Int'l, Inc., 461 So. 2d 1017 (Fla. 4th DCA 1984)