MITCHELL BROTHERS, INC., EDWARD MITCHELL, JR., AND ROBERTA MITCHELL, APPELLANTS,
v.
WESTFIELD INSURANCE COMPANY AND STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, APPELLEES
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The appellate court affirmed the trial court's summary judgment regarding liability for indemnification but reversed the damages award. The court found the evidence presented to establish damages, including attorney's fees, was inadmissible hearsay.
No, the affidavit and attached schedule of payments constituted hearsay and were insufficient to establish damages on summary judgment. The appellee failed to present admissible evidence to prove the amount of damages and reasonable attorneys' fees.
[1] Summary judgment for indemnification is affirmed when entitlement is established.
[2] An affidavit and attached schedule of payments, without further foundation, constitute hearsay and are insufficient to establish damages on summary judgment.
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Join FLexlaw to unlock all legal intelligence“We affirm, without further discussion, the summary judgment granted in favor of appellee as to its entitlement to indemnification. However, for the reasons discussed below, we reverse and remand for further proceedings to determine damages.”
This quote establishes the bifurcated nature of the appellate court's decision: affirming liability but reversing the damages award.
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Join FLexlaw to unlock all legal intelligenceAppellants appealed a trial court's summary judgment awarding over three million dollars in damages to the appellee based on an indemnity agreement. T…
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The appellants appeal the trial court’s entry of summary judgment in favor of the appellee/surety as to liability based on an indemnity agreement and which awarded the appellee more than three million dollars in damages. We affirm, without further discussion, the summary judgment granted in favor of appellee as to its entitlement to indemnification. However, for the reasons discussed below, we reverse and remand for further proceedings to determine damages. Below, the appellee relied on the affidavit of a corporate representative and an attached schedule of payments to establish its damages, including attorneys’ fees. The appellants objected on the ground that the affidavit and attached schedule of payments (which appellants argued was hearsay) was insufficient to establish damages on summary judgment. We agree. The affidavit and attached list of payments is insufficient to award summary judgment as they constitute hearsay. Cf. Roggemann v. Boston Safe Deposit and Trust Co., 670 So.2d 1073 (Fla. 4th DCA 1996) (holding that “a trial court cannot rely on affidavits at the hearing to assess attorney’s fees, since they are hearsay”). The appellee failed to establish that the schedule of payments was an admissible business record. Cf. Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999) (holding that in order to be admissible, a business record must be shown to have been: (1) made at or near the time of the event; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of regularly conducted business activity; and (4) that it was the regular *1270practice of that business to make such a record). Further, the appellee failed to introduce any other admissible evidence conclusively establishing the amount of damages and the reasonable attorneys’ fees it incurred. Thus, we reverse and remand for further proceedings to determine the amount of damages, including reasonable attorneys’ fees, as established by admissible non-hearsay evidence.
AFFIRMED in part, REVERSED and REMANDED in part.
BARFIELD, CLARK, and ROWE, JJ., concur.
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Citator
Cited By
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SAS v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013)…per foundation for introduction into evidence of an affidavit of the amounts allegedly due and owing); see generally Dreyer, 46 So. 3d at 615 (remanding for new hearing to determine amount of restitution); Mitchell Bros., Inc. v. Westfield Ins. Co., 24 So. 3d 1269, 1270 (Fla. 1st DCA 2009) (remanding for further proceedings to determine damages amount through nonhearsay evidence). Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion. WALLACE and BLACK, JJ„ Concur…
Authorities Cited
- Gernard Jackson v. State, 738 So. 2d 382 (Fla. 4th DCA 1999)
- Roggemann v. Boston Safe Deposit & Tr. Co., 670 So. 2d 1073 (Fla. 4th DCA 1996)