England v. Seminole Walls & Ceilings Corp.
| Decision Date | 11 April 2003 |
| Docket Number | No. 5D01-3844.,5D01-3844. |
| Citation | 842 So.2d 261 |
| Parties | Gerald D. ENGLAND, Appellant, v. SEMINOLE WALLS & CEILINGS CORP., Appellee. |
| Court | Florida District Court of Appeals |
Eric A. Lanigan, Winter Park, for Appellant.
Mark C. Filburn and Shawn J. O'Brien of Shepard, Filburn and Goodblatt, P.A., Orlando, for Appellee.
England (the defendant below) appeals from a final summary judgment granted against him which awarded Seminole Walls & Ceilings Corporation (Seminole Walls) the sum of $843,948.27, plus interest. We reverse because we think the record established material issues of fact which should not have been resolved on the basis of a summary judgment. Davis v. Lyall & Lyall Veterinarians, 506 So.2d 1072 (Fla. 5th DCA 1987); Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810 (Fla. 1st DCA 1976).
Seminole Walls filed a three-count complaint for fraud, conversion and civil theft against England, in which it alleged that England, as comptroller of Seminole Walls from 1997 through 2000, embezzled funds from the company for his personal use. England filed an answer and affirmative defenses, in which he claimed all the activities performed by him as comptroller during his employment with the company were done under the supervision and control of Robert Fox, the president, and Robert Fox Sr., the de facto chief operating officer, and with their knowledge and consent. England also claimed the complaint had been filed against him in retaliation, and to discredit him as a material witness in a criminal case filed against the Foxes in Orange County Circuit Court, in which the state asserted charges of criminal racketeering, fraud and conspiracy. See State v. Fox, Case No. CR 99-193CFA & B. Seminole Walls denied these allegations.
Seminole Walls filed a motion for summary judgment on August 6, 2001. It argued in its motion that England had asserted his Fifth Amendment privilege in answering interrogatories and at his deposition, and that he would be unable to set forth any facts to dispute Seminole Walls' claims. At this deposition, which is in the record, England's attorney stated the Fifth Amendment privilege was being asserted because Seminole Walls had initiated a criminal inquiry against England arising out of the same facts and circumstances set forth in its complaint.
Seminole Walls also filed an affidavit by Fox Sr., in support of the summary judgment motion. In his affidavit, Fox Sr. alleged, in essence, the material allegations of England's embezzlement and forgery as set forth in the complaint and attested he was "the person with knowledge" of the statements contained therein.
England then filed an affidavit in opposition to the summary judgment motion, restating the essence of his defenses: that Fox Sr. had been in complete control of the company operations, that he knew about all of the questioned transactions and had orchestrated them as a general scheme to defraud various government entities of taxes due them. In summary, he alleged Fox Sr. paid employees in ways that did not show as salary so as not to trigger tax obligations by the company but which would result in income tax deductions for the corporation. He further alleged that these activities culminated in a criminal prosecution of Fox Sr., and that he has since entered a plea of no contest to the felony charges of racketeering, conspiracy to commit racketeering, etc. The record further reveals that Fox, in fact, filed a petition to enter a plea of no contest to racketeering, conspiracy to commit racketeering, four counts of workers compensation fraud and organized fraud, on November 15, 2000.
At the summary judgment hearing, Seminole Walls persuaded the trial judge to exclude England's affidavit because it was untimely. Although it is not clear under the applicable Florida Rules of Civil Procedure, we think the better view is that it was timely and should have been considered at the summary judgment hearing held October 29, 2001.
The record established that England's counsel faxed the affidavit to Seminole Wall's counsel on October 24, 2001, and counsel acknowledged receiving it. On the same day, counsel for England mailed the original affidavit to the court and a copy to Seminole Wall's counsel. Because the original affidavit was not in the court file at the time of the summary judgment hearing, both attorneys went to the Clerk's Office to try to locate it. The Clerk was unable to verify at that time it had been received because it can take a day or two from actual receipt of an affidavit until the computer input and placement in the file occurs. Later, counsel for England confirmed it had been received by mail in the Clerk's Office on October 29, 2001.
Florida Rule of Civil Procedure 1.510(c), entitled "Summary Judgment," provides:
The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant's attorney no later than 5:00 p.m., two business days prior to the hearing.
Seminole Walls argues that since the affidavit was not mailed five days prior to the summary...
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Summons, service of process, and e-mail service
...be served by another authorized means, such as mail; fax service alone is insufficient. • England v. Seminole Walls and Ceiling Corp. , 842 So. 2d 261 (Fla. 5th DCA 2003). Word “delivering” in rule governing service of affidavits opposing summary judgment includes delivering by fax. [Fla. R......