CEMEX CONSTRUCTION MATERIALS, ETC., ET AL., APPELLANTS,
v.
CURTIS ROSS, JR., ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that an appellant waives the right to challenge a trial court's reliance on an unsworn representation by counsel if no contemporaneous objection is made.
[1] An attorney's representations to the court are considered virtually made under oath.
[2] Absent a stipulation, unsworn representations by counsel regarding factual matters generally cannot form the basis for a trial court's factual determination.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe trial court vacated a final judgment based on an attorney's unsworn representation that he did not receive notice of a hearing. The appellant argu…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion To Set Aside Judgment cases and more on FLexlaw
Appellant, Cemex Construction Materials Florida, LLC, contends that the trial court abused its discretion by vacating a final judgment based on the unsworn representation of Appellees’1 counsel, Thomas Ranew, that he had not received notice of the final hearing. Because Ce-*702mex did not object to the trial court’s failure to place Ranew under oath,2 we affirm.
Attorneys are officers of the court and, as such, their representations to the court have been described by the High Court as being “virtually made under oath.” Holloway v. Arkansas, 485 U.S. 475, 486, 98 S.Ct. 1178, 55 L.Ed.2d 426 (1978). Nevertheless, the general rule in Florida is that absent a stipulation, un-sworn representations by counsel about factual matters may not serve as the basis for a trial court’s factual determination. See, e.g., Taylor v. Taylor, 67 So.3d 359, 361 (Fla. 4th DCA 2011); Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006); Arnold v. Arnold, 889 So.2d 215, 216 (Fla. 2d DCA 2004).
Application of this general rule is, however, subject to the requirement that the opposing party make a contemporaneous objection. See Reddick v. Reddick, 728 So.2d 374 (Fla. 5th DCA 1999) (issue of whether, in absence of other evidence, trial court could rely on wife’s child support guidelines worksheet in calculating award was not preserved for review where wife’s counsel expressly argued from worksheet at divorce hearing without any objection from husband). Here, had Cemex timely objected to Ranew’s “unsworn testimony,” the trial court could have readily remedied the situation by placing Ranew under oath.
AFFIRMED.
TORPY and JACOBUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Dickson v. Dickson, 169 So. 3d 287 (Fla. 5th DCA 2015)…ters do not constitute evidence, and therefore, may not serve as the basis for a trial court's factual determination. E.g., Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So. 3d 487, 491 (Fla. 3d DCA 2013); Cemex Constr. Materials v. Ross, 102 So. 3d 701, 702 (Fla. 5th DCA 2012); Taylor v. Taylor, 67 So. 3d 359, 361 (Fla. 4th DCA 2011); Daughtrey v. Daughtrey, 944 So. 2d 1145, 1148 (Fla. 2d DCA 2006); Arnold v. Arnold, 889 So. 2d 215, 216 (Fla. 2d DCA 2004). However, in order to preserve any objecti…
Authorities Cited
- Holloway v. Arkansas, 435 U.S. 475 (U.S. 1978)
- Gaylen Lee Reddick v. Reddick, 728 So. 2d 374 (Fla. 5th DCA 1999)
- Daughtrey v. Daughtrey, 944 So. 2d 1145 (Fla. 2d DCA 2006)
- Cedar Mountain Ests., LLC v. Loan ONE, LLC, 4 So. 3d 15 (Fla. 5th DCA 2009)
- Taylor v. Taylor, 67 So. 3d 359 (Fla. 4th DCA 2011)
- Arnold v. Arnold, 889 So. 2d 215 (Fla. 2d DCA 2004)