DOUGLAS JACKSON AND JOYCE JACKSON, HIS WIFE, APPELLANTS,
v.
STELCO EMPLOYEES' CREDIT UNION, LIMITED, A CANADIAN CORPORATION, APPELLEE

Fla. 2d DCA | 1965-08-24
No. 5894
ALLEN, C. J., and SHANNON, J., concur.
178 So. 2d 58 Florida District Court of Appeal, Second District (1965) Positive Treatment
Cited by 8 cases

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Synopsis

Jackson sued to enforce a Canadian money judgment against the Stelcos. The trial court granted summary judgment for the plaintiff, but the appellate court reversed, finding that the Canadian judgment was not properly authenticated and that summary judgment was improper before the defendant had answered the complaint.


Holding

The court reversed the summary judgment because the Canadian judgment was not properly authenticated according to Florida law, the affidavit was incompetent and insufficient to authenticate it, summary judgment was improper before the defendant answered and could present material factual disputes, the motion for rehearing should not have been struck as it was timely filed, and there was no basis for entering judgment in U.S. dollars for the same amount without evidence of currency value.


Key Quotes

“The record fails to show that appellee's motion for summary judgment was supported by competent proof. The Canadian judgment was not authenticated by the custodian of the court's records and McDermott's affidavit in that respect is incompetent, and furthermore it is insufficient.”

Establishes that the affidavit failed to meet authentication requirements for foreign judgments

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Facts & Procedural History

The appellants were defendants in a debt action based on a Canadian money judgment. The plaintiff-appellee filed a motion for summary judgment support…

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Opinion of the Court
BARNS, PAUL D., Associate Judge.

BARNS, PAUL D., Associate Judge.

The appellants were defendants to an action in debt based on a Canadian money judgment. After defendants had filed a timely motion to dismiss, plaintiff-appellee moved for a summary judgment which was granted; whereupon, defendants appealed. We find error and reverse.

Appellants’ first point, supported by a statement of the supporting assignment of error upon which it is based,1 as prescribed by Rule 3.7, subd. f(4), Fla.App.Rules, 31 F.S.A. (Bailey v. Keene, Fla.App.1965, 171 So.2d 444), is that the court erred in giving consideration to the unauthenticated purported copy of the Canadian judgment. Appellants’ second and third points are that the court erred in giving consideration to the affidavit of L. J. McDermott, President of the appellee-plaintiff corporation, which affidavit purported to give authenticity to the judgment and the existence of the debt. Appellants’ fourth point is that the court erred in giving judgment for U. S. dollars in the same amount as the judgment for Canadian dollars without evidence of the value here of the Canadian dollar, and for improper award of costs.

The record fails to show that ap-pellee’s motion for summary judgment was supported by competent proof. The Canadian judgment was not authenticated by the custodian of the court’s records and McDermott’s affidavit in that respect is incompetent, and furthermore it is insufficient. The existence of a foreign judgment is a question of fact as is foreign law. Quoting 3 Jones, Evidence, § 671:

“In an early case in the Supreme Court of the United States, it was determined that foreign judgments may be authenticated in the following modes: ‘(1) By an exemplification under the great seal; (2) by a copy proved to be a true copy; (3) by the certificate of an officer authorized by law, which certificate itself must be properly authenticated. These are the usual, and appear to be the most proper, if not the only modes of verifying foreign judgments. If they be all beyond the reach of the party, other testimony, inferior in its nature may be received.’ 2 It is evident that this includes the common law method of proof by a sworn copy.”

Section 92.032, Florida Statutes, F.S.A., provides for the proof of foreign documents as follows:

“A copy of any official foreign document or record or entry therein, certified by the lawful custodian thereof, shall be admissible in evidence in all courts of this state in all cases now pending or hereafter commenced to prove the contents thereof when accompanied by a certificate of an official of such foreign government that such lawful custodian has certified such copy in his official capacity and in accordance with the laws of such foreign country and when this accompany*60ing certificate is authenticated by a certificate of a consular oificer of the United States resident in such foreign country, under the seal of his office, that the person signing such accompanying certificate is such official of such foreign government and the signature appearing on such accompanying certificate is genuine.”

McDermott’s affidavit does not attempt to authenticate the purported copy attached to the complaint. It does not even state that he has ever seen the original or compared the copy with the original.

Rule 1.36(e), Fla.R.Civ.P., 30 F.S.A., like Rule 56(e), Fed.R.Civ.P., on Motion's for Summary Judgments, requires that supporting affidavits “shall be made on personal knowledge, shall set forth facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated herein.”

Appellants assign as error the act of the lower court in sustaining plaintiff’s motion to strike the defendants’ timely motion for a rehearing. The final judgment was entered on November 16, 1964, and the motion for rehearing was served by mail on November 23, 1964. Rule 2.8(b), Fla. R.Civ.P., provides:

“(b) Time for Motion. A motion for a new trial, or a motion for rehearing in matters heard without a jury or rehearing of any motion for judgment provided for by these rules, shall be served not later than 10 days after the rendition of verdict or the entry of a summary judgment.” [Emphasis supplied]

The foregoing Rule clearly recognizes that the practice permits the making of a motion for rehearing in actions at law, but, for the purpose of giving finality to final judgments, limits the time to serve the motion to not later than 10 days after judgment. Rule 1.6(c), Fla.R.Civ.P., has eliminated the effect of the continued existence or expiration of a term of court and in lieu thereof fixed periods of time have been substituted by the Rules. The striking of the motion was error. Floyd v. State, Fla.1962, 139 So.2d 873.

Furthermore, appellants assign as error that there is no basis for entry of a money judgment of U. S. dollars for the same amount of a Canadian judgment for Canadian dollars and for taxing as costs the expense of a credit report. We find both well founded. The plaintiff’s measure of damages is the value of the amount of the Canadian judgment measured in U. S. dollars. Plaintiff’s expense in procuring a credit report is not a taxable “costs.”

The rule of law applicable to a hearing on a plaintiff’s motion for summary judgment before the defendant is required to serve an answer is well stated in Olin’s v. Avis Rental Car System of Florida, Fla.App.1958, 105 So.2d 497, 498-499:

“When a trial court has for consideration a plaintiff’s motion for summary judgment before the defendant has answered, the summary judgment should not be granted unless it is clear that an issue of material fact can not be presented. See [6] Moore’s Federal Practice, § 56.07, p. 2044. Cf. Ludlow Mfg. & Sales Co. v. Textile Workers Union, D.C.Del., 108 F.Supp. 45, 51.
“In dealing with such a question under the equivalent Federal Rule 56, 28 U.S. C.A., this point was elaborated on in Stuart Inv. Co. v. Westinghouse Electric Corp., D.C.Neb., 11 F.R.D. 277, 280, as follows:
“ ‘ * * * But although a motion by a claimant for summary judgment, served before the service of answer to his complaint may not be denied on the ground that it is necessarily and inevitably tendered too early, the general cautions against the allowance of such motions mentioned in the preceding paragraph must be kept in view. And *61within their teaching, a court must not grant a summary judgment upon motion therefor tendered before the service of an answer, unless in the situation presented, it appears to a certainty that no answer which the adverse party might properly serve could present a genuine issue of fact’ ”

The defendants have not answered and the record fails to show that no answer which the defendants might properly make could present a genuine issue of fact.

Reversed.

ALLEN, C. J., and SHANNON, J., concur.


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Citator

Cited By

  • Daeda v. Blue Cross & Blue Shield OF Fla., Inc., 698 So. 2d 617 (Fla. 2d DCA 1997)
    …t properly authenticated. Therefore, the trial court could not properly consider that information in deciding a motion for summary judgment. In re Crosley, 384 So .2d 274 (Fla. 4th DCA 1980). See also Jackson v. Stelco Employees’ Credit Union, Ltd., 178 So. 2d 58 (Fla. 2d DCA 1965). Without that information, a question concerning a material issue of fact remains, and we, accordingly, reverse and remand for proceedings consistent herewith. Reversed and remanded with instructions. THREADGILL and PATTERSON, JJ…
  • Gutterman-Musicant-Kreitzman, Inc. v. I.G. Realty Co., 426 So. 2d 1216 (Fla. 4th DCA 1983)
    …could present a genuine issue of fact. See also: Olin’s v. Avis Rental Car System of Florida, 105 So. 2d 497 (Fla. 3rd DCA 1958); Lehew v. Larsen, 124 So. 2d 872, 85 AL2d 821 (Fla. 1st DCA 1960); Jackson v. Stelco Employees’ Credit Union, Limited, 178 So. 2d 58 (Fla. 2d DCA 1965). Since I.G. Realty did not carry the heavy burden as a movant for summary judgment before Gutterman’s answer was filed, we need not consider Gutterman’s affidavits filed with the motion for rehearing. Under Coffman, supra, they w…
  • Beach Higher Power Corp. v. Granados, 717 So. 2d 563 (Fla. 3d DCA 1998)
    …mmary judgment.” Olin’s Inc. v. Avis Rental Car Sys. of Fla., Inc., 105 So. 2d 497, 498-99 (Fla. 3d DCA 1958) (citations omitted); see also Burch v. Kibler, 643 So. 2d 1120, 1122 (Fla. 4th DCA 1994); Jackson v. Stelco Employees’ Credit Union, Ltd., 178 So. 2d 58, 60-61 (Fla. 2d DCA 1965). We agree with Beach that this case was particularly ill-suited for a summary judgment prior to answer where Granados’ motion did not negate every possible defense to this action. For example, Beach correctly points out th…

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