GARY MCGOWAN, APPELLANT,
v.
MIAMI-DADE COUNTY, JOAQUIN G. AVINO, AS COUNTY MANAGER FOR METROPOLITAN DADE COUNTY, METRO-DADE POLICE DEPARTMENT, FRED TAYLOR, ROBERT WINDSOR, PATRICIA MILLIGAN MCCOY, APPELLEES
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The court reversed summary judgment against McGowan on his breach of contract claim against Miami-Dade County because a material factual dispute existed regarding whether the County failed to remove documents from his personnel files as required by the agreement.
A material factual issue exists whether Miami-Dade County breached an agreement by failing to remove documents from McGowan's personnel files, precluding summary judgment in the County's favor.
[1] A material factual dispute regarding performance of a contractual obligation to remove documents from personnel files precludes summary judgment for the defendant.
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Join FLexlaw to unlock all legal intelligenceGary McGowan entered into an agreement with Miami-Dade County regarding the removal of documents from his personnel files. The County moved for summar…
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PER CURIAM.
Gary McGowan appeals a final summary judgment on a breach of contract claim and an agreed order awarding attorney’s fees. We reverse the judgment as to Miami-Dade County: the record, which includes the affidavits submitted on rehearing, establishes the existence of the material factual issue whether the County breached the agreement with McGowan by failing to remove the pertinent documents from his personnel files and not from the internal affairs file.1 See Fatherly v. California Fed. Bank, 703 So. 2d 1101, 1102 (Fla. 2d DCA 1997); Sapphire Condominium Ass’n, Inc. v. Amerivend Corp., 691 So. 2d 600 (Fla. 4th DCA 1997). Accordingly, the County did not carry its burden on summary judgment. However, we affirm the summary judgment entered in favor of the other appellees. See E.C. Goldman, Inc. v. A/R/C Assocs., Inc., 543 So. 2d 1268 (Fla. 5th DCA), review denied, 551 So. 2d 461 (Fla.1989); Busby v. City of Orlando, 931 F. 2d 764 (11th Cir.1991). Because we reverse the summary judgment in favor of the County, we must reverse that portion of the order awarding the County attorney’s fees and costs.
Judgment affirmed in part and reversed in part; order awarding the County fees and costs reversed; and cause remanded.
. At oral argument, the County conceded that the documents were in McGowan's personnel files.
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AC Holdings 2006, Inc. v. McCARTY, 985 So. 2d 1123 (Fla. 3d DCA 2008)…ges, costs and attorneys’ fees. Thus, we conclude that under the facts of this case, the trial court abused its discretion in rejecting an affidavit that merely explicated the issues that previously had been raised. See McGowan v. Miami-Dade County, 724 So. 2d 683, 684 (Fla. 3d DCA 1999) (reversing summary judgment where the record, including the affidavits submitted on rehearing, established the existence of a material factual issue). In two cases out of the Second District, the Court of Appeal reversed sum…
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Yurgal Pascal v. Broward Water Consultants, Inc (Fla. 3d DCA 2022)…5 So. 2d 1123, 1126 (Fla. 3d DCA 2008), that in circumstances in which a clear issue precluding summary judgment is brought on rehearing, the trial court abuses its discretion in failing to order rehearing. See also McGowan v. Miami–Dade County, 724 So. 2d 683, 684 (Fla. 3d DCA 1999) (reversing summary judgment where the record, including the affidavits submitted on rehearing, established the existence of a material factual issue). In his motion for rehearing, Mr. Pascal references evidence submi…
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Authorities Cited
- Busby v. City OF Orlando, 931 F.2d 764 (11th Cir. 1991)
- Fatherly v. Cal. Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997)
- E.C. Goldman, Inc. v. A/R/C Assocs., Inc., 543 So. 2d 1268 (Fla. 5th DCA 1989)
- Sapphire Condo. Ass'n, Inc. v. Amerivend Corp., 691 So. 2d 600 (Fla. 4th DCA 1997)