ROSAIDA PEREZ

v.

UNITED AUTOMOBILE INSURANCE COMPANY

I l \ o ~ ‘it~s\' ~‘-"‘r~"=a 4-..-;|.’=§> _.| I- ‘Q 06-27-"l4 10:42 FROM- ¢ J’

NOT FINAL UN

TO FILE REHEARING MOTION

F.

___:£kND, II}'gFlLE[_)_; DISPOSED o §-REE}50;.,¢.£,@%_. T—80’I P0005/O00? F~427 '\. .

5.

, l

TN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

TIL TIME EXPIRES

* * * * *

APPELLATE DIVISION

. CASE NO. 13-161 AP EH12.3 ‘Alf?E Cfiuflrg Cililflif.F‘ ‘ mu. 86 1%. TRIAL CASE NO; 00-264 CC 24 (01) l% Ia u‘.“ 2-, ¢~:$‘;. ~?g 52:» ;;.'5 . rd-3 NEIDA PE§zEZ, Appellant, .

ll’//3? A <4»/no Fl

VS.

UNITED AUTOMOBILE

INSURANCE COMPANY, a Florida corporation, Appcliee. A _ ______ , I Opinion Filed:%)A\);_, ' fnllh, J An Appeal from the County Court for M1ami-Dado County, Florida, l . < ' ' ' ‘a M. Best, Esq, ofLopez 8:. Best, for Jcannic M. Jontiff, Bsq., ofJontiff& Jontlff and Virgnn Appellant. ' Michael J. Neimand, Bsq., ofOfficc ofthe General Counsel, United Automobile Insurance Company, for Appcilco. A ~- X Before ARZOLA, SARDUY, and MANNO SCHURR, JI. (MANNO SCI-IURR, J.) ' ' t ntered July 27, 2012 in the county This is on appeal from a final summmy Judgmen B V The standard of review of an court in favor of Appellee United Automobile Insurallce Company. ' ' vo. Volusia County v. Aberdeen at Ormond order granting a final summary Judgment 1s do no l [*2] 06—2?—’ 14 10:42 FROill— T—-30l ?0006/0007 F-42? It ‘ 1' I I Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). On or about January 27, 2000, Plaintiff, Rosaida Perez, filed suit for Personal Injury Protection Benefits under her policy of insurance with United Automobile Insurance Company (United), for injuries sustained in an automobile accident that occurred on August 29, 1999. After 12 years of litigation, the trial Court heard Unitsd’s Third Motion for Summary Judgment on July 27, 2012. On the day of the surnniary judgment hearing, and over Appellant’s objection, the Appellee handed the trial court. copies of: 1) the first deposition of the Appellant dated December 7, 2001; 2) interrogutory answers ofthe Appellant dated September 6, 2001; and 3) a oopy of a police report for the accident date. Obviously. Appelleo intended to rely upon these documents as evidence in support of its motion but none of these documents were filed of record until the day alter the hearing on United’s summary judgment motion, nor were these documents provided to Perez’ counsel prior to the hearing. Despite the objections raised at the hearing by Appellanfls counsel, the trial court. allowed the evidence, considered the evidence and entered summaryjudgment in favor of United based upon that evidence. This appeal followed. The central issue on appeal is whether the trial court erred in considering the evidence preserrted to it for the first time at the summaryjudgment hearing. Florida Rule of Civil Procedure 1.510(0) provides that a party moving for summary judgment shall serve the motion at least twenty days before the time fixed for the hearing, and shall also serve at that time a copy of any summary judgment evidence on which the movunt relies that has not already been filed with the court. Viola v. U.-S‘. Bank Nat’! Ass ‘n, 133 So. 3d 1018, I019 (Fla. 4th DCA 2014) (final summary judgment was improperly entered based on an unauthentieated original promissory note and mortgage served twelve days prior to [*3] us-2?-*14 10:43 FROM— T—30’l P000?/coo? F-427 \ I .= \ _, ._, .___ ". .../' the hearing); Mlliorns v. Bank ofAm, N./1.. 101 S0. 3d 1288, 1289 (Fla. 4th DCA 2012). The purpose of the Rule is to prevent ainbush by allowing the nonmoving patty to be prepared for issues that will be argued at the summary judgment hearing. Hotel 71 Mezz Lender, LLC v. Tull, 66 So. 3d 1051, 1054 (Fla. 3d DCA 201]). Because the appellee filed this evidence on the day after the hearing we find that the trial court emmeously considered these previously unfiled documents as evidence. Summary J'lldgfl1f1flii$ fill fllterllfltivé to 21 party’s right to trial and as such, the Coult must follow the strict procetlurcs set forth in the Rule. Accordingly, we REVERSE the final summary judgment entered in favor of the appellee and remand for further p1'oc_eedings consistent with this opinion. Because we reverse the final summary jlldgntent below under Florida Rule of Civil Procedure Rule I.5I0(c), we do not consider the remaining issues on appeal. Appeliee‘s motion for attorney’s fees is hereby dented. Appeliantfs inotion for fees is granted, conditioned on the Appellant prevailing on the merits below pursuant to Fla. Stat. 627.428. ' (ARZOLA and SARDUY, JJ-. concur.) comes FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.