ANTONIO OTERO, APPELLANT,
v.
GILBERTO GOMEZ, III, APPELLEE
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Homeowner Gomez moved for summary judgment in a premises liability case but filed it only fourteen days before trial without proper notice. The trial court granted the motion through a motion in limine hearing, effectively bypassing the twenty-day notice requirement of Florida Rule of Civil Procedure 1.510(c). The appellate court reversed because the trial court granted summary judgment relief that was never requested in the motion in limine and violated the plaintiff's right to proper notice.
Yes. The appellate court reversed because the trial court violated the twenty-day notice requirement of Florida Rule of Civil Procedure 1.510(c) and granted relief that was not requested in either motion in limine. A motion in limine hearing cannot serve as a vehicle for presenting an unnoticed summary judgment motion.
[1] A landowner owes a duty to adjacent motorists to prevent foliage on their property from extending into the public right-of-way and interfering with safe travel.
[2] A private residential landowner generally does not owe a duty to adjacent motorists for foliage located wholly within the boundaries of their property.
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Join FLexlaw to unlock all legal intelligence“Because Gomez's motion in limine was used as a vehicle to grant summary judgment without affording Otero the required notice, the final judgment entered by the trial court must be reversed.”
Establishes the core error: using a motion in limine to circumvent the notice requirements for summary judgment motions.
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Join FLexlaw to unlock all legal intelligenceIn December 2011, Otero was hit by a car while riding his bicycle through a crosswalk on a sidewalk. Otero alleged his view of oncoming traffic was ob…
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Appellant, Antonio Otero, Plaintiff below, appeals from the trial court’s March 13, 2013, Order Granting Defendant’s Motion in Limine and Amendment to Motion in Limine, and March 26, 2013, Final Judgment. Because the trial court effectively granted Defendant-Appellee Gilberto Gomez, Ill’s (Gomez) untimely motion for summary judgment, we reverse and remand for further proceedings.
I. Facts
In December 2011, Otero filed a complaint for injuries he sustained after being hit by a car1 while riding his bicycle. Otero rode along a sidewalk and into a crosswalk when he was hit by a car pulling into the intersection. Otero alleged that his view of oncoming traffic was obstructed by a wall, which had, years before, been constructed on Gomez’s property.
The wall was built by the developer of the area and then altered without permits by the prior owner. Otero contended the *1091wall constituted a dangerous condition and that Gomez was negligent for either creating the condition or allowing the condition to exist.
Otero sought to introduce the expert witness testimony of Richard E. Cabrera. Cabrera was going to testify at trial that the wall on Gomez’s property obstructed a “sight triangle,” and that the wall’s obstruction of drivers’ lines-of-sight violated certain county ordinances and Florida Department of Transportation (FDOT) standards.
On February 15, 2013, Gomez timely filed a motion in limine to exclude Cabrera’s testimony. Gomez argued that any evidence concerning county ordinances, “sight triangles,” and property violations, was not relevant because Gomez owed no duty to Otero under Williams v. Davis, 974 So.2d 1052 (Fla.2007).2
Four days after filing his motion in li-mine — on February 19, 2013 — Gomez filed a motion for summary judgment, again relying on Williams. Gomez argued that, because the wall on his property did not extend into the public right-of-way, he owed no duty to Otero, and, therefore, could not be liable as a matter of law. The record is devoid of any notice of hearing on the motion for summary judgment.
During the pretrial conference on February 21, the trial court informed Gomez that his motion for summary judgment would not be heard before trial.3
On February 27, only days before the commencement of trial, Gomez amended his previously-filed motion in limine. The amended motion sought an order excluding the introduction of any evidence regarding FDOT design standards and contained the same arguments as did the motion for summary judgment. Essentially, Gomez argued he owed no duty to Otero and could not “be liable as a matter of law, for an alleged obstruction which exists entirely on his property and does not protrude into the public right-of-way.”
Prior to the trial commencing, on March 5, the trial court heard the parties’ pretrial motions, including Gomez’s motion in limine and Gomez’s amended motion in limine. Gomez’s counsel argued that, because the wall at issue was entirely within the boundaries of Gomez’s property, Gomez owed no duty to Otero. Notably, while Gomez’s counsel sought to have the case dismissed by the trial court at the “motion in limine stage,” neither of Gomez’s motions in limine requested, as relief, that the case be dismissed; the motions merely sought orders excluding evidence which Gomez argued was not relevant.
Indeed, on several occasions, the trial court queried, “Shouldn’t this be a motion *1092for directed verdict?” At the conclusion of the hearing, the trial court reserved ruling on Gomez’s motions in limine and voir dire began.
The following morning, on March 6, the trial court announced, “I’m ready to rule on the motion in limine on the issue of duty.” It proceeded:
After reading Williams ... I find that there is no duty on behalf of the homeowner to the public when the property— when the wall is in his property, within his boundaries. I don’t want to make that ruling, but in good conscience, I have no choice.
Your motion is granted.
Gomez’s counsel then moved, ore tenus,4 to dismiss the complaint, and the trial court granted the motion and cancelled the trial. On March 13, the trial court entered an order granting Gomez’s motions in li-mine. Subsequently, a final judgment was entered March 26, in favor of Gomez. This appeal followed.
II. Analysis
The issue before us is whether the trial court erred in effectively granting a motion for summary judgment under the guise of a motion in limine.
Pursuant to Florida Rule of Civil Procedure 1.510(c), a party moving for summary judgment must serve its motion on the adverse party at least twenty days prior to the time specified for the hearing on the summary judgment motion.
The record reflects Gomez filed his motion for summary judgment on February 19, fourteen days prior to the March 5 commencement of trial when the trial court essentially conducted the unnoticed hearing on Gomez’s summary judgment motion. Gomez violated the requisites of Rule 1.510(c) by failing to notice and set the motion for hearing at least twenty days after the filing of the summary judgment motion. See Brock v. G.D. Searle & Co., 580 So.2d 428, 430 (Fla. 1st DCA 1988) (“It is reversible error for a trial court to grant summary judgment based on a motion which fails to comply with the 20-day notice requirement.”).
As additional grounds for reversal, we note that it is well settled that a hearing on a motion in limine “may not serve as a vehicle for presentation of an unnoticed motion for summary judgment.” Fouts v. Bowling, 596 So.2d 95, 95 (Fla. 3d DCA 1992); see also Connell v. Cap. City Partners, LLC, 932 So.2d 442, 444 (Fla. 3d DCA 2006); Wizikowski v. Hillsborough Cnty., 651 So.2d 1223 (Fla. 2d DCA 1995).
Also, it is well settled that a court is without authority to grant relief not requested by a party in the pleading. See Bank of N.Y. Mellon v. Reyes, 126 So.3d 304, 309 (Fla. 3d DCA 2013) (stating courts are unauthorized to grant relief not requested in the pleadings). The trial court dismissed Otero’s case on the merits despite neither motion in limine requesting such relief.
Because Gomez’s motion in limine was used as a vehicle to grant summary judgment without affording Otero the required notice, the final judgment entered by the trial court must be reversed. See Brock, 530 So.2d at 430 (holding that such a ruling constitutes reversible error); Connell, 932 So.2d at 444 (“[T]he granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.”).
We reverse and remand the case for *1093further proceedings.5
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Daniels v. Sorriso Dental Studio, LLC, 164 So. 3d 778 (Fla. 2d DCA 2015)…lating Daniels’ due process rights. See, e.g., Worthington v. Worthington, 123 So. 3d 1189, 1190-91 (Fla. 2d DCA 2013) (noting that courts are not authorized to award relief not requested by the pleadings and motions of the parties); Otero v. Gomez, 143 So. 3d 1089, 1092 (Fla. 3d DCA 2014); cf. Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 871 (Fla. 2d DCA 2011) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate…
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Citizens Prop. Ins. Corp. v. Glendys Vazquez (Fla. 3d DCA 2020)…ne order and an expert affidavit filed on behalf of Ms. Vazquez. This was procedural error. See Fla. R. Civ. P. 1.510(c) (prescribing motion and notice requirements that must be met before a movant is entitled to summary judgment); Otero v. Gomez, 143 So. 3d 1089, 1092 (Fla. 3d DCA 2014) (reversing the trial court’s entry of final judgment where the motion in limine was used as a vehicle to grant summary judgment without affording the required notice); Connell v. Capital City Partners, LLC, 932 So. 2d 442, 4…
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Glendys Vazquez v. Citizens Prop. Ins. Corp. (Fla. 3d DCA 2020)…ne order and an expert affidavit filed on behalf of Ms. Vazquez. This was procedural error. See Fla. R. Civ. P. 1.510(c) (prescribing motion and notice requirements that must be met before a movant is entitled to summary judgment); Otero v. Gomez, 143 So. 3d 1089, 1092 (Fla. 3d DCA 2014) (reversing the trial court’s entry of final judgment where the motion in limine was used as a vehicle to grant summary judgment without affording the required notice); Connell v. Capital City Partners, LLC, 932 So. 2d 442, 4…
Authorities Cited
- McCAIN v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)
- Williams v. Davis, 974 So. 2d 1052 (Fla. 2007)
- Connell v. Cap. City P'rs, LLC, 932 So. 2d 442 (Fla. 3d DCA 2006)
- The Bank OF NEW York Mellon under Novastar Mortg. Funding Tr. v. Reyes, 126 So. 3d 304 (Fla. 3d DCA 2013)
- Brock v. G.D. Searle & Co., 530 So. 2d 428 (Fla. 1st DCA 1988)
- Fouts v. Bowling, 596 So. 2d 95 (Fla. 3d DCA 1992)
- Wizikowski v. Hillsborough Cnty., 651 So. 2d 1223 (Fla. 2d DCA 1995)