Nation Security, LLC v. Everest National Insurance Co.

• Court: District Court of Appeal of Florida
• Decided: February 28, 2024
• Docket: 2023-0594
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 28, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0594 Lower Tribunal No. 22-11206 ________________

Nation Security, LLC, et al., Appellants,

vs.

Everest National Insurance Co., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Mamone Villalon, and Ramsey Villalon, for appellant Nation Security, LLC.

The Pivnik Law Firm, and Jerome A. Pivnik, for appellees.

Before EMAS, MILLER and LOBREE, JJ.

EMAS, J. Everest National Insurance Company and Everest Indemnity

Insurance Company (together, “Everest”) sued Nation Security, LLC, and

Supra Security, Inc. (together, “Nation Security”) for failing to pay additional

insurance premium invoices generated from a payroll and sales audit. To

collect these funds, Everest asserted claims of open account, account

stated, and breach of contract. The relevant invoices were attached to the

complaint, but the actual insurance policies were not. 1

Nation Security appeals final summary judgment entered in favor of

Everest on all three counts. Nation Security contends the trial court erred for

several reasons, but primarily (as to Count Three) because it granted

summary judgment even though Everest never introduced the policies into

the record—either as attachments to the complaint or as evidence in support

of its motion for summary judgment.

Everest responds generally that it was unnecessary to do so because

“the policies were not the basis of the suit.” See Fla. R. Civ. P. 1.130(a)

(providing: “All bonds, notes, bills of exchange, contracts, accounts, or

documents upon which action may be brought or defense made, or a copy

1 Nation Security moved to dismiss the complaint for failure to attach the insurance policies, but that motion was denied. Nation Security also filed an answer and affirmative defenses asserting Everest’s failure to attach the policies to the complaint as required by Florida Rule of Civil Procedure 1.130.

2 thereof or a copy of the portions thereof material to the pleadings, shall be

incorporated in or attached to the pleading. No papers shall be unnecessarily

annexed as exhibits. The pleadings shall contain no unnecessary recitals of

deeds, documents, contracts, or other instruments.”) (Emphasis added).

Everest further states that it provided Nation Security with copies of the

policies during discovery.

This Court applies de novo review to a summary judgment ruling.

Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000). As the party seeking summary judgment, Everest bore the burden to

“show[] that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Pellerano v. Renta, 48

Fla. L. Weekly D2142 at *1 (Fla. 3d DCA, Nov. 8, 2023) (quoting Fla. R. Civ.

P. 1.510(a)). Once Everest met this burden, it became Nation Security’s

burden as the nonmovant to “come forward with an affidavit or other proof to

show the existence of a genuine dispute as to a material fact.” Id.

With respect to Count One (Open Account) and Count Two (Account

Stated), the submitted affidavit, invoices and other record evidence were

sufficient to meet Everest’s burden on summary judgment. See Farley v.

Chase Bank, U.S.A., N.A., 37 So. 3d 936, 937 (Fla. 4th DCA 2010) (“In order

to state a valid claim on an open account, the claimant must attach an

3 ‘itemized’ copy of the account.”) (quotation omitted); see also id. at 937-38

(“The cause of action for an account stated is based on the agreement of the

parties to pay the amount due upon the accounting, and not any written

instrument. Thus, it is not necessary, in order to support a count upon

account stated, to show the nature of the original debt, or to prove the

specific items constituting the account.”) (quotation omitted). Nation

Security’s affidavit, in turn, was insufficient to defeat summary judgment on

these claims. Mane FL Corp. v. Beckman, 355 So. 3d 418, 425 (Fla. 4th DCA

2023) (“The ‘mere existence of a scintilla of evidence’ is not sufficient to

defeat summary judgment.”) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986)); Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465,

467-68 (Fla. 3d DCA 2022) (“Under the new summary judgment rule, ‘[w]hen

opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion

for summary judgment.’”) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

However, with respect to Count Three (Breach of Contract), Everest’s

failure to attach, or otherwise make a part of the record in support of

summary judgment, the insurance policies which represented the underlying

contract alleged to have been breached by Nation Security, requires

4 reversal. See Fla. R. Civ. P. 1.510(c)(1)(A) (“A party asserting that a fact

cannot be or is genuinely disputed must support the assertion by . . . citing

to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials”); see also Deauville

Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 953 (Fla. 3d DCA 2017) (“To

prevail in a breach of contract action, a plaintiff must prove: (1) a valid

contract existed; (2) a material breach of the contract; and (3) damages.”)

Stated differently, the policies, not the invoices, are the basis for the breach

of contract claim. See Fla. R. Civ. P. 1.130(a); cf. Blue Star Restoration Inc.

v. First Protective Ins. Co., 321 So. 3d 240, 242 (Fla. 4th DCA 2021) (“First

Protective relied on the insurance policy's provisions to contend that the

public adjuster was properly on the check. However, the policy was never

made part of the record. Summary judgment must be based solely on those

materials properly presented to the court in accordance with the procedure

set forth in Florida Rule of Civil Procedure 1.510. Here, that was not done.”) 2

2 Even Everest’s complaint appeared to contemplate the filing of the insurance policies into the trial record, stating: “The policies are voluminous and will be filed at the appropriate time . . . .”) Further, Everest does not contend that Nation Security waived this argument at the hearing on the summary judgment motion; to the contrary, the issue was raised by Nation

5 We therefore affirm the final summary judgment as to Count One

(Open Account) and Count Two (Account Stated) but reverse the final

summary judgment as to Count Three (Breach of Contract). 3 We remand for

further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded.

Security in its answer to the complaint and in its response in opposition to Everest’s motion for summary judgment. 3 We find no merit in the remaining issues raised on appeal.