Belson v. Miller
Decision Date | 02 December 2020 |
Docket Number | No. 3D19-0987,3D19-0987 |
Citation | 314 So.3d 525 |
Parties | Magela BELSON, et al., Appellants, v. Jeffrey A. MILLER, et al., Appellees. |
Court | Florida District Court of Appeals |
Warren Gammill & Associates, P.L., and Warren P. Gammill, Miami, for appellants.
Bruce S. Rogow, P.A., and Bruce S. Rogow and Tara A. Campion (Fort Lauderdale); Weinstein Law, P.A., and Morgan L. Weinstein (Fort Lauderdale), for appellees.
Before LOGUE, HENDON and LOBREE, JJ.
Magela Belson (the "client") and Sarah Ann Belson, Michael Belson, and Christine Belson appeal from the lower court's order denying their motion for leave to amend, striking all but one of their complaint's counts as a sham, and entering final summary judgment in favor of Jeffrey A. Miller ("Miller") and Alexandra Rodriguez ("Rodriguez") on all but the remaining count. We reverse and remand for further proceedings.
We review a lower court's ruling on a motion to strike pursuant to Florida Rule of Civil Procedure 1.150 for abuse of discretion. See Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So. 2d 942, 944 (Fla. 5th DCA 2005) ().
The motion was not verified as required by rule 1.150 and section 92.525(2), Florida Statutes (2019). It is undisputed that the hearing on it was neither noticed, nor held as an evidentiary hearing, despite the clear due process requirement that all three things be the case. See Miller v. Nelms, 966 So. 2d 437, 440 (Fla. 2d DCA 2007) ( ); Herranz v. Siam, 2 So. 3d 1105, 1107 (Fla. 3d DCA 2009) ( ); Furst v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th DCA 1999) ( ). As affidavits cannot substitute for the testimony and other documentary evidence that an evidentiary hearing requires, see Reyes ex rel. Barcenas v. Roush, 99 So. 3d 586, 589 (Fla. 2d DCA 2012) ( ), the finding of falsity in any of the complaint's allegations in the order on review was not supported by competent, substantial evidence.
Because summary judgment for both defendants was pursuant to (and only as authorized by) rule 1.150, rather than rule 1.510, reversal is required on the basis of the procedural defects in the proceedings below. See Scarfone v. Silverman, 408 So. 2d 778, 781 (Fla. 2d DCA 1982) ( ). We express no view on the merits of Miller's motion to strike. See Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 n.2 (Fla. 3d DCA 2018) ( ).
We also reverse that portion of the order sua sponte striking or dismissing all counts against Rodriguez and entering summary judgment in her favor. Her only pending motion to dismiss was not noticed for hearing that day, and the lower court granted her relief as a result of the perceived merits of Miller's improperly heard motion to strike, adjudicated first. Cf. Pacheco v. Wasserman, 701 So. 2d 104, 106 (Fla. 3d DCA 1997) (...
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