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SAMPLE
BRIEF TO THE FLORIDA DISTRICT COURT OF APPEALS
PROCEDURAL HISTORY
Plaintiff filed a Second Amended Complaint on
or around XXXXXXXXXX. [App1]
Defendants filed an Answer to plaintiff's Second
Amended Complaint on or around XXXXXXXXXX. [App5]
Defendants filed a Motion for Summary Judgment
on or around XXXXXXXXXX. [App8]
Plaintiff filed a Motion to Dismiss defendants'
Motion for Summary Judgment on or around XXXXXXXXXX. [App23]
The trial court entered an Order granting defendants'
Motion for Summary Judgment on or around XXXXXXXXXX. [App47]
The trial court entered an Order denying plaintiff's
Motion to dismiss defendants' Motion for Summary Judgment on or
around XXXXXXXXXX. [App49]
The trial court entered a Final Order on or around
June 7, 2006. [App50]
Plaintiff filed a Motion for Reargument on or
around XXXXXXXXXX. [App51]
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Defendants filed a Memorandum in Opposition to
Plaintiff's Motion for Reargument on or around XXXXXXXXXX. [App58]
That motion has never been adjudicated by the trial court.
Plaintiff filed a Notice of Appeal on or around
XXXXXXXXXX. [App73]
On or around XXXXXXXXXX, plaintiff filed a Docketing
Statement and Notice of Appearance of Counsel. [App67]
On or around XXXXXXXXXX, plaintiff filed an Amended
Docketing Statement and Notice of Appearance of Counsel. [App64]
On or around XXXXXXXXXX, defendants filed a Memorandum
of Law in Opposition to Plaintiff's Motion to Strike Defendants'
Memorandum in Opposition to Plaintiff's Motion for Reconsideration
of Summary Judgment and Plaintiff's Affidavit. [App80]
On or around XXXXXXXXXX, plaintiff filed a Motion
to Supplement the Record with a copy of Plaintiff's Motion to
Strike Defendant's Memorandum in Opposition to Plaintiff's Motion
for Reconsideration of Summary Judgment and Plaintiff's Affidavit.
[App74]
STATEMENT OF THE CASE AND OF THE FACTS
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Plaintiff filed a Second Amended Complaint on
XXXXXXXXXX alleging that her attorneys, Defendants XXXXXXXXXXXX,
Esq., and the Law Offices of XXXXXXXXXXXXXXXX, P.A., breached
a professional duty due to her by, inter alia, abandoning her
two weeks before a critical administrative hearing that resulted
in her loss of Medicaid benefits for her adult day care business.
[App1]
The defendants filed an Answer that asserted
various affirmative defenses, not including that plaintiff had
failed to timely pay legal fees and costs due to defendants. [App5]
Defendants filed a motion for summary judgment
based nearly entirely on that defense. [App8] Plaintiff responded
with a motion to strike their motion for summary judgment since
the asserted defense was not raised in the defendants' Answer.
[App23] The trial court disregarded plaintiffs' argument and dismissed
the motion notwithstanding that there were material facts in dispute.
[App47, 49] The disputed material facts included whether plaintiff
had offered defendants payment via credit card and whether defendants
refused to accept the payment. [App53]
Plaintiff filed a timely Notice of Appeal. [App64,
67]
SUMMARY OF THE ARGUMENT
The trial court erred by allowing the defendants
to raise defenses during a motion for summary judgment that were
not asserted in the defendants' Answer and by granting the motion
for summary judgment where material facts were in dispute. The
trial court made credibility determinations during the motion.
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STANDARD OF REVIEW
"The standard of review of an order granting
summary judgment is de novo." Fini v. Glascoe, 936 So.2d
52, 54 (Fla. 4th DCA 2006), quoting Volusia County v. Aberdeen
at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)".
ARGUMENT
I. THE TRIAL COURT ERRED BY ALLOWING DEFENDANTS
TO RAISE DEFENSES IN THEIR MOTION FOR SUMMARY JUDGMENT WITHOUT
LEAVE OF COURT THAT WERE NOT ASSERTED IN DEFENDANTS' ANSWER
Defendants' Motion for Summary Judgment asserted
a defense that the defendants were entitled to withdrawal as plaintiff's
counsel pursuant to a clause in the Retainer Agreement that allegedly
allowed the defendants to withdrawal as plaintiff's counsel for
non-payment of attorney's fees. [App8] In fact, that was the only
argument made in defendants' motion.
Plaintiff responded to their motion with a Motion to Dismiss Summary
Judgment Motion that incorporated her response to the defendants'
motion. [App23] Plaintiff argued in her motion that the defendants'
did not assert the defense of non-payment of fees in their Answer
to her Complaint. [App25-26] A copy of the Complaint is reproduced
in the Appendix at App1. A copy of the Answer is reproduced in
the Appendix at App5.
The trial court erred by allowing defendants
to raise issues during a motion for summary judgment that were
not raised in their Answer. "[E]very defense in law or fact
shall be asserted in the responsive pleading. The grounds on which
any of the enumerated defenses are based and the substantial matters
of law intended to be argued shall be stated specifically and
with particularity in the responsive pleading". Florida Rule
of Civil Procedure 1.140(b).
The most recent analogous caselaw on this issue
is Sun Valley Homeowners, Inc. v. American Land Lease, Inc., 927
So.2d 259 (Fla. 2nd DCA 2006). There, like here, defenses were
asserted for the first time on a motion for summary judgment.
The defenses were not asserted in the party's Answer. The trial
court allowed the defenses to be raised notwithstanding, granted
the motion for summary judgment and the aggrieved party appealed.
On appeal, the Second District Court of Appeals held that the
question under such circumstances is whether a party will be prejudiced
by allowing the defenses to be raised for the first time during
a motion for summary judgment. Id. at 263. The court wrote that,
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Sun Valley Homeowners has at no point-either
before the trial court or in this appeal-presented any argument
that it was prejudiced by American Land Lease's raising the
capacity issue in its motion for summary judgment. Indeed, when
the trial court raised the issue of prejudice, Sun Valley Homeowners'
counsel stood mute. Since Sun Valley Homeowners failed in the
trial court proceedings to make any showing of prejudice, the
trial court properly permitted American Land Lease to raise
the capacity to sue issue by way of the motion for summary judgment.
Id.
The First District Court of Appeals, however,
has held that not raising an affirmative defense in an Answer
constitutes a waiver of the defense. "Appellant argues, correctly,
that, subject to certain exceptions not applicable here, affirmative
defenses not alleged in the answer are deemed waived." Mangum
v. Susser, 764 So.2d 653, 655-56 (Fla. 1st DCA 2000), citing Fla.
R. Civ. P. 1.140(b) & (h), and Bilow v. Benoit, 519 So. 2d
1114 (Fla. 1st DCA 1968).
Notwithstanding that Sun Valley Homeowners Association,
Inc., supra, is not controlling in this District, the case at
bar is distinguished from it in that the court below in the case
at bar did not raise the question of whether plaintiff was prejudiced
by any means by allowing the untimely amendment. Plaintiff in
this regard had no opportunity to present her arguments. In that
case the appellant did not raise the issue of prejudice in the
appellate brief, whereas that issue is being raised herein. Finally,
in that case the trial court made findings of fact and conclusions
of law as to why the court allowed the late amendments. There
is no record in the case at bar as to why the court made that
decision.
In the case at bar, the plaintiff was prejudiced
by the untimely amendment because she was not afforded an opportunity
to obtain discovery for her defense. Plaintiff could have deposed
the defendants and their staff about her telephone call offering
to make the payment by credit card (the defendants accept credit
cards for payment of legal fees).
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II. THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT BECAUSE MATERIAL FACTS WERE IN DISPUTE
Summary judgment may not be granted unless there
is an absence of material disputed facts. "The judgment sought
shall be rendered forthwith if the … evidence on file show[s]
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fla. R. Civ. P. 1.510(c).
A. Payment Offered by Credit Card.
Plaintiff's responsive motion argued that she
offered to pay the outstanding legal fees on her credit card.
[App25] Defendants admitted during discovery that a VISA payment
was offered. [App53] The defendants provided no response.
"Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge, whether he
is ruling on a motion for summary judgment or for a directed verdict."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). See
also Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502
(Fla. 5th DCA 2005) (a court may not weigh the evidence or judge
the credibility of witnesses in arriving at summary judgment).
B. Misguided Legal Advice.
Plaintiff alleged that Defendant XXXX advised
her that she should not resubmit her application [App26-27], yet
her argued in his motion for summary judgment that her claims
against him are barred because she failed to do so. [App9] That
is a completely self-serving argument. "To grant summary
judgment in this case, the trial court would have to find TRG's
conclusory self-serving testimony competent, while finding the
plaintiffs' somewhat less conclusory testimony incompetent. This
would be improper." Craven v. TRG-Boynton Beach, Ltd., 925
So.2d 476, 480 (Fla. 4th DCA 2006). This would also require a
credibility determination. See Point II(A), supra.
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C. Lack of Specialized Skill.
Plaintiff alleges that Defendant XXXX lacked
knowledge and skill in administrative law, notwithstanding that
he was represented to her as being an expert. Mr. XXXX is not
even listed by his own law firm as being an administrative law
attorney. [App27] His advising plaintiff on issues that he is
not experienced in would constitute an action of professional
negligence. This was in dispute during the motion for summary
judgment.
CONCLUSION
The First District Court of Appeals should reverse
the Order of Summary Judgment and remand this matter to the trial
court for further proceedings, including trial.
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Dated:
CERTIFICATION OF SERVICE
This is to certify that on _________________________________,
I, XXXXXX XXXXXX, mailed a copy of this brief and appendix upon
appellee's attorney, XXXXXXXXXXXXXXX, Esq., at XXXXXXXXXXXXXXXXXXXXXX,
via Certified Mail Return Receipt Requested.
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_____________________________
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Dated:
CERTIFICATION OF COMPLIANCE
This is to certify that the undersigned has complied
with Florida Rule 9.100(1), including the font and margin requirements.
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Dated:
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