NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
SALVATORE AMBROGIO, an individual, ) and ROSEMARIE AMBROGIO, an ) individual, ) ) Appellants, ) ) v. ) Case No. 2D17-2202 ) MARCELINE MCGUIRE, an ) individual, and THE TRUST DATED ) OCT. 25, 1991, Marceline McGuire, ) Trustee, ) ) Appellees. ) ___________________________________)
Opinion filed May 11, 2018.
Appeal from the Circuit Court for Polk County; Keith Spoto, Judge.
Kevin P. Kelly and Connor S. Kelly of KellyLaw, P.A., Orlando, for Appellants.
Marceline McGuire, pro se.
BADALAMENTI, Judge.
Salvatore and Rosemarie Ambrogio sued Marceline McGuire and "The
Trust Dated October 25, 1991," a trust in which Ms. McGuire serves as trustee, over Ms. McGuire's failure to pay on a $33,500 promissory note.1 After a hearing on Ms.
McGuire's motions for summary judgment, the trial court granted final summary
judgment in her favor, holding that the statute of limitations had run on all of the
Ambrogios' claims. On appeal, the Ambrogios argue that Ms. McGuire neglected to
raise statute of limitations as a ground for summary judgment with particularity in any of
her written motions and thus failed to comply with Florida Rule of Civil Procedure
1.510(c). We agree and reverse the final summary judgment.
Factual and Procedural Background
The Ambrogios contracted to sell their Polk County home to Ms. McGuire
in 2007. Before closing on the deal, the parties signed an unartful, handwritten
promissory note, in which Ms. McGuire agreed to pay $33,500 to the Ambrogios once
she sold her Lodgewood Drive home. Ms. McGuire took title and possession of the
Ambrogios' home but, for reasons not entirely clear from the record, did not sell her
Lodgewood Drive home. Over the next several years, the Ambrogios were
unsuccessful in their attempts to receive payment from Ms. McGuire. As such, in 2015,
they sued Ms. McGuire in a sixteen-count complaint alleging, among other claims,
fraud, breach of contract, and unjust enrichment. Ms. McGuire answered the complaint,
asserting five affirmative defenses including a statute of limitations defense as follows:
"This action is barred by the statute of limitations as evidenced by the alleged
promissory note dated February 28, 2007."
1Although both Ms. McGuire and The Trust Dated October 25, 1991, are appellees in this appeal, we collectively refer to these parties as "Ms. McGuire."
-2- Ms. McGuire subsequently filed a series of motions seeking summary
judgment, some with attachments and others with no attachments. The common thread
of these motions is that they all consist of one-sentence, conclusory statements
asserting that there were no issues of material fact and that she was thus entitled to
summary judgment. For example, in her motion titled "Amended Motion for Summary
Judgment" she stated that she was entitled to summary judgment because the
"pleadings, the Deposition of Salvatore Ambrogio previously filed, and the affidavit of
Marceline McGuire, marked as Exhibit A, show that there is no genuine issue of any
material fact and the defendants is [sic] entitled to judgment as a matter of law."2
The trial court subsequently held a hearing on Ms. McGuire's motions for
summary judgment. During that hearing, Ms. McGuire's counsel asserted that the trial
court must grant summary judgment to her because the statute of limitations as to all of
the Ambrogios' claims had run. The Ambrogios' counsel responded that Ms. McGuire
neglected to raise statute of limitations as a ground for summary judgment in any of her
motions for summary judgment. The trial court asked Ms. McGuire's counsel to identify
where the statute of limitations argument had been asserted in Ms. McGuire's motions
for summary judgment. Ms. McGuire's counsel responded: "Only in my first affirmative
defense that's part of my answer. It's part of the pleadings." (Emphasis added.) The
Ambrogios' counsel argued to the trial court that Ms. McGuire's motions for summary
judgment did not comply with Florida Rule of Civil Procedure 1.510(c) because none of
them "state[d] with particularity the grounds on which [they were] based and the
2In another motion titled "Defendant's summary for motion for summary judgment," Ms. McGuire merely provided factual allegations.
-3- substantial matters of law to be argued." The trial court rejected this argument, ruling
that Ms. McGuire's motions for summary judgment complied with rule 1.510(c). The trial
court thus granted summary judgment to Ms. McGuire exclusively on the statute of
limitations ground, which was fleshed out in detail at the hearing.
Discussion
On appeal, the Ambrogios argue that the trial court erred in granting Ms.
McGuire summary judgment on the statute of limitations ground because Ms. McGuire
had not raised statute of limitations with particularity in any of her written motions
seeking summary judgment.
It is reversible error to enter summary judgment on a ground not raised
with particularity in the motion for summary judgment. Williams v. Bank of Am. Corp.,
927 So. 2d 1091, 1093 (Fla. 4th DCA 2006) (citing, inter alia, Cheshire v. Magnacard,
Inc., 510 So. 2d 1231, 1234 (Fla. 2d DCA 1987)). Florida Rule of Civil Procedure
1.510(c) mandates that a motion for summary judgment "must state with particularity the
grounds on which it is based and the substantial matters of law to be argued and must
specifically identify any affidavits, answers to interrogatories, admissions, depositions,
and other materials as would be admissible in evidence ('summary judgment evidence')
on which the movant relies." A purpose of this rule "is to eliminate surprise and to
provide parties a full and fair opportunity to argue the issues." H.B. Adams Distribs.,
Inc. v. Admiral Air of Sarasota Cty., Inc., 805 So. 2d 852, 854 (Fla. 2d DCA 2001) (citing
Lee v. Treasure Island Marina, Inc., 620 So. 2d 1295, 1297 (Fla. 1st DCA 1993)); see
also Cheshire, 510 So. 2d at 1234 ("The purpose of the rule is to put the opposing party
on notice as to the grounds which will be asserted against him." (quoting Burns v.
-4- Consol. Am. Ins. Co., 359 So. 2d 1203, 1206 (Fla. 3d DCA 1978))); City of Cooper City
v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995) ("This rule is
designed to prevent 'ambush' by allowing the nonmoving party to be prepared for the
issues that will be argued at the summary judgment hearing." (quoting Swift Indep.
Packing Co. v. Basic Food Int'l, Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984))).
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
SALVATORE AMBROGIO, an individual, ) and ROSEMARIE AMBROGIO, an ) individual, ) ) Appellants, ) ) v. ) Case No. 2D17-2202 ) MARCELINE MCGUIRE, an ) individual, and THE TRUST DATED ) OCT. 25, 1991, Marceline McGuire, ) Trustee, ) ) Appellees. ) ___________________________________)
Opinion filed May 11, 2018.
Appeal from the Circuit Court for Polk County; Keith Spoto, Judge.
Kevin P. Kelly and Connor S. Kelly of KellyLaw, P.A., Orlando, for Appellants.
Marceline McGuire, pro se.
BADALAMENTI, Judge.
Salvatore and Rosemarie Ambrogio sued Marceline McGuire and "The
Trust Dated October 25, 1991," a trust in which Ms. McGuire serves as trustee, over Ms. McGuire's failure to pay on a $33,500 promissory note.1 After a hearing on Ms.
McGuire's motions for summary judgment, the trial court granted final summary
judgment in her favor, holding that the statute of limitations had run on all of the
Ambrogios' claims. On appeal, the Ambrogios argue that Ms. McGuire neglected to
raise statute of limitations as a ground for summary judgment with particularity in any of
her written motions and thus failed to comply with Florida Rule of Civil Procedure
1.510(c). We agree and reverse the final summary judgment.
Factual and Procedural Background
The Ambrogios contracted to sell their Polk County home to Ms. McGuire
in 2007. Before closing on the deal, the parties signed an unartful, handwritten
promissory note, in which Ms. McGuire agreed to pay $33,500 to the Ambrogios once
she sold her Lodgewood Drive home. Ms. McGuire took title and possession of the
Ambrogios' home but, for reasons not entirely clear from the record, did not sell her
Lodgewood Drive home. Over the next several years, the Ambrogios were
unsuccessful in their attempts to receive payment from Ms. McGuire. As such, in 2015,
they sued Ms. McGuire in a sixteen-count complaint alleging, among other claims,
fraud, breach of contract, and unjust enrichment. Ms. McGuire answered the complaint,
asserting five affirmative defenses including a statute of limitations defense as follows:
"This action is barred by the statute of limitations as evidenced by the alleged
promissory note dated February 28, 2007."
1Although both Ms. McGuire and The Trust Dated October 25, 1991, are appellees in this appeal, we collectively refer to these parties as "Ms. McGuire."
-2- Ms. McGuire subsequently filed a series of motions seeking summary
judgment, some with attachments and others with no attachments. The common thread
of these motions is that they all consist of one-sentence, conclusory statements
asserting that there were no issues of material fact and that she was thus entitled to
summary judgment. For example, in her motion titled "Amended Motion for Summary
Judgment" she stated that she was entitled to summary judgment because the
"pleadings, the Deposition of Salvatore Ambrogio previously filed, and the affidavit of
Marceline McGuire, marked as Exhibit A, show that there is no genuine issue of any
material fact and the defendants is [sic] entitled to judgment as a matter of law."2
The trial court subsequently held a hearing on Ms. McGuire's motions for
summary judgment. During that hearing, Ms. McGuire's counsel asserted that the trial
court must grant summary judgment to her because the statute of limitations as to all of
the Ambrogios' claims had run. The Ambrogios' counsel responded that Ms. McGuire
neglected to raise statute of limitations as a ground for summary judgment in any of her
motions for summary judgment. The trial court asked Ms. McGuire's counsel to identify
where the statute of limitations argument had been asserted in Ms. McGuire's motions
for summary judgment. Ms. McGuire's counsel responded: "Only in my first affirmative
defense that's part of my answer. It's part of the pleadings." (Emphasis added.) The
Ambrogios' counsel argued to the trial court that Ms. McGuire's motions for summary
judgment did not comply with Florida Rule of Civil Procedure 1.510(c) because none of
them "state[d] with particularity the grounds on which [they were] based and the
2In another motion titled "Defendant's summary for motion for summary judgment," Ms. McGuire merely provided factual allegations.
-3- substantial matters of law to be argued." The trial court rejected this argument, ruling
that Ms. McGuire's motions for summary judgment complied with rule 1.510(c). The trial
court thus granted summary judgment to Ms. McGuire exclusively on the statute of
limitations ground, which was fleshed out in detail at the hearing.
Discussion
On appeal, the Ambrogios argue that the trial court erred in granting Ms.
McGuire summary judgment on the statute of limitations ground because Ms. McGuire
had not raised statute of limitations with particularity in any of her written motions
seeking summary judgment.
It is reversible error to enter summary judgment on a ground not raised
with particularity in the motion for summary judgment. Williams v. Bank of Am. Corp.,
927 So. 2d 1091, 1093 (Fla. 4th DCA 2006) (citing, inter alia, Cheshire v. Magnacard,
Inc., 510 So. 2d 1231, 1234 (Fla. 2d DCA 1987)). Florida Rule of Civil Procedure
1.510(c) mandates that a motion for summary judgment "must state with particularity the
grounds on which it is based and the substantial matters of law to be argued and must
specifically identify any affidavits, answers to interrogatories, admissions, depositions,
and other materials as would be admissible in evidence ('summary judgment evidence')
on which the movant relies." A purpose of this rule "is to eliminate surprise and to
provide parties a full and fair opportunity to argue the issues." H.B. Adams Distribs.,
Inc. v. Admiral Air of Sarasota Cty., Inc., 805 So. 2d 852, 854 (Fla. 2d DCA 2001) (citing
Lee v. Treasure Island Marina, Inc., 620 So. 2d 1295, 1297 (Fla. 1st DCA 1993)); see
also Cheshire, 510 So. 2d at 1234 ("The purpose of the rule is to put the opposing party
on notice as to the grounds which will be asserted against him." (quoting Burns v.
-4- Consol. Am. Ins. Co., 359 So. 2d 1203, 1206 (Fla. 3d DCA 1978))); City of Cooper City
v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995) ("This rule is
designed to prevent 'ambush' by allowing the nonmoving party to be prepared for the
issues that will be argued at the summary judgment hearing." (quoting Swift Indep.
Packing Co. v. Basic Food Int'l, Inc., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984))).
Moreover, where a party's motion for summary judgment states "only in
general terms that no material issues of fact or law existed and that [the movant] was
entitled to the relief requested[,] [s]uch a motion is insufficient to place the nonmoving
party on notice of the issues of fact or law which will be argued at the hearing." Locke v.
State Farm Fire & Cas. Co., 509 So. 2d 1375, 1377 (Fla. 1st DCA 1987); see also
Worley v. Sheffield, 538 So. 2d 91, 92 (Fla. 1st DCA 1989) (holding that a motion for
summary judgment was insufficient where it conclusively stated 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"). Under such circumstances, reversal and remand for further
proceedings is appropriate in order to afford the nonmoving party proper notice and an
opportunity to be heard. See Sunshine Wireless Co., 654 So. 2d at 284.
Here, Ms. McGuire neglected to raise any legal ground with particularity in
her motions for summary judgment, much less state with particularity the statute of
limitations ground that the trial court relied upon to grant her summary judgment. It is
undisputed that she pleaded, albeit without elaboration, statute of limitations as one of
five affirmative defenses in her answer by asserting that the action is barred "as
evidenced by the alleged promissory note dated February 28, 2007." Without any
elaboration in her motions for summary judgment, she asserted that she was entitled to
-5- summary judgment based on "the pleadings . . . [because] there is no genuine issue of
any material fact." (Emphasis added.) It was reversible error for the trial court to
conclude that Ms. McGuire complied with rule 1.510(c). See Deluxe Motel, Inc. v. Patel,
727 So. 2d 299, 301 (Fla. 5th DCA 1999) (concluding that the trial court erred in
granting summary judgment based on arguments made at the summary judgment
hearing but not in the written motion for summary judgment).
Ms. McGuire has not cited, nor have we identified, a single case holding
that pleading an affirmative defense somehow obviates a summary judgment movant's
obligation to comply with the particularity requirements mandated by rule 1.510(c). And
to the extent that the trial court's entry of summary judgment was based on Ms.
McGuire's incorporation of that affirmative defense by referencing her "previously filed
pleadings" in her motions for summary judgment, courts have held that a general
assertion is not, without more explication, a particularized ground upon which the
motion is based as contemplated by rule 1.510(c). See, e.g., Alexopoulos v. Gordon
Hargrove & James, P.A., 109 So. 3d 248, 250 (Fla. 4th DCA 2013) (holding that the trial
court erred in entering summary judgment for the movant based on lack of standing
where the movant's motion for summary judgment raised the issue of standing in a one-
sentence footnote because "[the] footnote did not provide [the nonmovant] adequate
notice that she would be required to offer record evidence to refute the allegations of
lack of standing and to offer a legal rebuttal as to this issue"); Williams, 927 So. 2d at
1093 (concluding that a one-sentence footnote in a memorandum of law in support of
the movant's motion for summary judgment that raised the issue of liability was
-6- insufficient to place the nonmovant on notice of the issue and to allow the nonmovant a
full and fair opportunity to argue the issue at the summary judgment hearing).
To hold otherwise would contravene the plain and ordinary meaning of
rule 1.510(c), which requires "particularity," not generality, its polar opposite. Fla. R.
Civ. P. 1.510(c) ("The motion [for summary judgment] must state with particularity the
grounds on which it is based and the substantial matters of law to be argued . . . ."
(emphasis added)). Even more, to permit what the appellees did here would encourage
unnecessary gamesmanship in litigation and sandbagging of a nonmovant to a motion
for summary judgment. Additionally, a motion for summary judgment's generalized
references to transcripts, attachments, or pleadings without explanation hinder both the
nonmovant's and trial court's preparation for hearings on that motion for summary
judgment.
Accordingly, because Ms. McGuire's motions for summary judgment did
not satisfy the particularity requirement set forth in rule 1.510(c), we reverse and
remand for further proceedings in order to offer the Ambrogios a meaningful opportunity
to be heard on the particularized arguments that Ms. McGuire contends warrant
summary judgment. See Sunshine Wireless Co., 654 So. 2d at 284.3
MORRIS and BLACK, JJ., Concur.
3We express no opinion as to whether the trial court's application of a five- year statute of limitations was correct.
-7-