YURGAL PASCAL v. BROWARD WATER CONSULTANTS, INC, etc.

• Court: District Court of Appeal of Florida
• Decided: December 14, 2022
• Docket: 21-0727
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 14, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-727 Lower Tribunal No. 17-22406 CC ________________

Yurgal Pascal, Appellant,

vs.

Broward Water Consultants, Inc., etc., Appellee.

An Appeal from the County Court for Miami-Dade County, Diana Gonzalez-Whyte, Judge.

Yurgal Pascal, in proper person.

Schneider Law Firm, P.A., and Leslie Mark Schneider (Fort Lauderdale), for appellee.

Before FERNANDEZ, C.J., and LOGUE and MILLER, JJ.

PER CURIAM. Yurgal Pascal appeals the trial court’s orders granting summary

judgment in favor of Broward Water Consultants, Inc., and denying his

motion to reconsider same. Because the record shows that there remains a

dispute of material fact as to Broward Water’s entitlement to judgment, we

reverse both orders.

Broward Water brought this breach of contract claim against Mr.

Pascal after he failed to pay for a home water filtration system. Broward

Water moved for summary judgment submitting a contract for sale and an

affidavit from its corporate representative stating that Mr. Pascal did not pay

for the system. In his submission entitled “Affidavit of Claim,” Mr. Pascal, who

appeared pro se at the trial court and in these appellate proceedings,

claimed that while he had originally contracted to purchase the system, and

it was delivered, he exercised his right to cancel the contract within three

days of sale and Broward Water retrieved the system from his home. This

right to cancel exists on the face of the contract and Mr. Pascal submitted

text messages showing his cancellation within three days of the contract

date.

On three occasions, the trial court attempted to hold a hearing on

Broward Water’s motion for summary judgment. On all three occasions, Mr.

Pascal filed a last-minute motion for continuance. At the time scheduled for

2 the third hearing, and when Mr. Pascal did not appear, the trial court denied

the motion to continue and ultimately granted summary judgment in favor of

Broward Water.

Mr. Pascal moved for rehearing within ten days of the order granting

summary judgment. In his motion, Mr. Pascal again admits that he

contracted for the sale of the system, however, he exercised his right to

cancellation. The trial court denied the motion after a hearing.

Because the order on summary judgment was issued before the

change in Florida Rule of Civil Procedure 1.510, we are compelled to apply

our holding in AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123, 1126

(Fla. 3d DCA 2008), that in circumstances in which a clear issue precluding

summary judgment is brought on rehearing, the trial court abuses its

discretion in failing to order rehearing. See also McGowan v. Miami–Dade

County, 724 So. 2d 683, 684 (Fla. 3d DCA 1999) (reversing summary

judgment where the record, including the affidavits submitted on rehearing,

established the existence of a material factual issue).

In his motion for rehearing, Mr. Pascal references evidence submitted

by affidavit prior to the summary judgment hearing that he exercised his right

to cancel, which was presented on the face of the contract for sale. This

adequately established a fact issue that precluded summary judgment.

3 Under our previous precedent, the trial court’s failure to order rehearing in

this instance was an abuse of discretion. We therefore reverse both orders

on appeal, and remand to the trial court for further proceedings.

Reversed.