ULRIKE GROEBER AND KARL GROEBER, APPELLANTS,
v.
KLAUS HEURING, APPELLEE
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A trial court cannot grant an oral motion for summary judgment made on the day a case is set for trial, as it violates notice requirements.
The trial judge granted an oral motion for summary judgment on the morning of trial, after a prior motion had been denied. The appellant had not been …
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PER CURIAM.
On the morning of trial, the trial judge granted an oral motion for summary judgment after a previous regularly set motion for summary judgment had been denied by a predecessor judge.1 We reverse. See Fruh-morgen v. Watson, 490 So. 2d 1032 (Fla. 2d DCA 1986) wherein the following is found.
Appellant contends that the trial court, by refusing to allow a full trial on the merits, denied him his constitutional right of due process. We agree. In the event the trial court thinks that summary final judgment is proper, it is necessary that the party moved against be given the notice required by Florida Rule of Civil Procedure 1.510 and be allowed an opportunity to meet the question of whether there exists a genuine issue of material fact. Muncey v. Star Brite Distributors, Inc., 378 So. 2d 1326 (Fla. 3d DCA 1980); Moseley v. Bi-Lo Supermarket, Inc., 341 So. 2d 222 (Fla. 3d DCA 1977). Here, as in Muncey and Moseley, there was no motion pending for summary judgment and none was made by appellee. Even if there had been, we have held that a trial court may not grant a party’s oral motion for summary judgment made on the day a case is set for trial because the notice requirements of rule 1.510(c) require that a motion for summary judgment be served at least twenty days before the hearing. Lazar v. Allen, 347 So. 2d 457 (Fla. 2d DCA 1977).
Therefore, the summary judgment of March 7,1996, is reversed and this cause is remanded to the trial court for further proceedings.2
Reversed and remanded.
. Subsequent to this denial an additional count was added by amendment to the complaint.
. This opinion shall not prevent the trial court from considering a properly filed motion for summary judgment with appropriate supporting affidavits or discovery.
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Hotel 71 Mezz Lender, LLC v. Tutt, 66 So. 3d 1051 (Fla. 3d DCA 2011)…umber of issues, as is the case before us. See id. As such, appellate courts customarily overturn trial court decisions granting summary judgment to parties that did not serve the required notice. See Casa Inv., 8 So. 3d at 1221; Groeber v. Heuring, 690 So. 2d 1343, 1344 (Fla. 3d DCA 1997). As previously stated, the trial court granted summary judgment in Tutt’s favor. This occurred even though Tutt never moved for summary judgment. Hotel 71 properly noticed its motion for summary judgment. In turn, Tutt had…
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Lamb v. Allstate Ins. Co., 808 So. 2d 1254 (Fla. 3d DCA 2002)…. 3d DCA 1986); see also Wasa Int’l Ins. Co. v. Hurtado, 749 So. 2d 579, 580 (Fla. 3d DCA 2000). To the extent that Cahill v. Cooney, 182 So. 2d 32, 33 (Fla. 3d DCA 1966), suggests otherwise, it is dictum. Plaintiffs reliance on Groeber v. Heuring, 690 So. 2d 1343 (Fla. 3d DCA 1997), is misplaced. In Groeber, the motion for summary judgment had been denied. Without prior notice, the court granted an oral motion for summary judgment on the day of trial. Id. at 1344. In the present case there was notice that th…
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Garces v. Nationwide Home Equity (15th Cir. Ct. App. Div. 2009)…otion. Lazar v. Allen, 347 So. 2d 457 (Fla. 2d DCA 1977). The twenty day notice requirement must be strictly followed. Roberts at 626; Fruhmorgen v. Watson, 490 So. 2d 1032 (Fla. 2d DCA 1986); Savage-Hawk, 474 So. 2d 1242; cf., Groeber v. Heuring, 690 So. 2d 1343, 1344 (Fla. 3d DCA 1997) (reversing summary judgment entered pursuant to oral motion made on the morning of trial for lack of mandatory notice); E & I Inc. v. Excavators Inc. 697 So. 2d 545, 546 (Fla. 4th DCA 1997) (reversible error to grant summary…
Authorities Cited
- Lazar v. Allen, 347 So. 2d 457 (Fla. 2d DCA 1977)
- 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)