Heritage Property & Casualty Insurance Company v. Carmen A. Hernandez

• Court: District Court of Appeal of Florida
• Decided: October 16, 2024
• Docket: 3D2023-0967
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 16, 2024. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D23-0479 & 3D23-0967 Lower Tribunal No. 19-37396 ________________

Carmen A. Hernandez, Appellant/Appellee,

vs.

Heritage Property & Casualty Insurance Company, Appellee/Appellant.

Appeals from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger (Tampa), for appellant/appellee.

Kubicki Draper, and Angela C. Flowers (Ocala), for appellee/appellant.

Before SCALES, GORDO, and LOBREE, JJ.

SCALES, J. In appellate case number 3D23-0479, Carmen Hernandez, the plaintiff

below, appeals the final summary judgment entered in favor of the defendant

below, Heritage Property & Casualty Insurance Company (“Heritage”). In

appellate case number 3D23-0967, Heritage appeals the final order denying

Heritage’s motion to tax attorney’s fees and costs (“fees motion”) based on

a proposal for settlement. We, sua sponte, have consolidated the appeals.

In December 2019, Hernandez filed this first-party action against her

insurer, Heritage, seeking insurance benefits under her homeowner’s

insurance policy. On November 25, 2022, Heritage moved for final summary

judgment. Apparently unable to obtain a hearing date for its summary

judgment motion that was agreeable to the parties, Heritage filed a motion in

the trial court to set a hearing date. On January 9, 2023, the trial court

entered an order setting Heritage’s summary judgment motion for a hearing

to be held on January 23, 2023 (fourteen days later), and, on that date,

issued a notice of hearing.

Hernandez, who had not yet filed a response to Heritage’s summary

judgment motion – citing to Florida Rule of Civil Procedure 1.510(c)(5)1 –

1 The rule provides:

(5) Timing for Supporting Factual Positions. At the time of filing a motion for summary judgment, the movant must also serve the movant’s supporting factual position as provided in subdivision

2 moved to continue the summary judgment hearing, arguing that the trial court

had not given Hernandez “the twenty (20) days required in advance of the

hearing to properly respond to the Defendant’s Motion for Summary

Judgment.” By written order, the trial court denied Hernandez’s motion to

continue just prior to holding the January 20, 2023 summary judgment

hearing. At the January 20th hearing, again citing rule 1.510(c)(5),

Hernandez orally renewed her motion to continue the hearing, arguing that

“the Motion for Summary Judgment hearing being today would not have

given me a sufficient 20 days to make sure I get a Response in timely so that

the Defendant could at least make a Response or a Reply under the rule, if

he needed to.” The trial court again declined to continue the hearing.

Noting that Hernandez had not served a response to Heritage’s

summary judgment motion and otherwise finding that Heritage’s summary

judgment motion and evidence were sufficient, the trial court granted

Heritage’s motion for summary judgment and, on January 24, 2023, entered

the challenged final summary judgment.

(1) above. At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant's supporting factual position as provided in subdivision (1) above.

Fla. R. Civ. P. 1.510(c)(5) (emphasis added).

3 Hernandez timely moved for rehearing, arguing again that, pursuant to

rule 1.510(c)(5), the trial court was required to give Hernandez at least twenty

days to respond to Heritage’s summary judgment motion before conducting

the summary judgment hearing. The trial court denied Hernandez’s

rehearing motion. Hernandez timely appealed the final summary judgment

(appellate case number 3D23-0479).

Effective May 1, 2021, the Florida Supreme Court amended Florida

Rule of Civil Procedure 1.510 to adopt the federal summary judgment

standard. See In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77 (Fla.

2021); In re Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d 192, 192 (Fla.

2020). “Subdivision (c)(5), which is not present in the federal rule, sets forth

the timing requirements for the parties’ supporting factual positions and

requires the nonmovant to serve a response to a motion for summary

judgment at least twenty days prior to the hearing[.]” Llloyd S. Meisels, P.A.

v. Dobrofksy, 341 So. 3d 1131, 1134-35 (Fla. 4th DCA 2022) (footnote

omitted). If the nonmovant fails to timely serve the response required by the

rule, the trial court has the discretion to consider the facts undisputed and to

grant summary judgment in favor of the movant if the summary judgment

motion and supporting materials show that the movant is entitled to it. See

Fla. R. Civ. P. 1.510(e)(2)-(3).

4 Apparently, because Hernandez filed no opposition to Heritage’s

summary judgment motion, the trial court entered summary judgment for

Heritage. Without reaching the merits of the challenged summary judgment,

we reverse the final summary judgment because, by noticing Heritage’s

summary judgment motion for a hearing to be held in a mere fourteen days,

the trial court made it impossible for Hernandez – who had not yet responded

to Heritage’s summary judgment motion – to comply with rule 1.510(c)(5).

Accordingly, we reverse the challenged final summary judgment

without prejudice to Heritage’s summary judgment motion being set for a

future hearing where Hernandez is given at least twenty days to serve her

response in accordance with rule 1.510(c)(5). Cf. Beaches MRI v. Safeco

Ins. Co. of Ill., 386 So. 3d 965, 965 (Fla. 4th DCA 2024) (“We reverse

because the trial court granted Safeco’s motion for summary judgment even

though the motion was filed in violation of Florida Rule of Civil Procedure

1.510(b)’s requirement that the motion and evidence be filed at least 40 days

before the hearing.”).

With regard to Heritage’s appeal of the trial court’s denial of its fees

motion (appellate case number 3D23-0967), because Heritage’s fees motion

was predicated upon the final summary judgment, we must vacate, as

5 premature,2 the May 1, 2023 order denying Heritage’s fees motion. See

Berkley Ins. Co. v. Banc of Am. Cmty. Dev. Co., 386 So. 3d 623, 625 (Fla.

2d DCA 2024) (“BACDC and Bank of America’s motion for attorney’s fees

and costs was predicated upon the partial final judgment. Our reversal in part

of that judgment necessitates vacatur of the fee order as premature. We

therefore remand for the trial court to vacate the fee order.”).

Summary judgment reversed; order on fees motion vacated.

2 We express no opinion on the merits as to whether the trial court erred in denying Heritage’s fees motion.