CITY OF SUNRISE, APPELLANT,
v.
STEPHEN HINTON, APPELLEE
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The City of Sunrise appealed a summary judgment awarding a public employee attorney's fees for his criminal defense. The court reversed, finding the supporting affidavit did not comply with procedural rules, there remained material factual disputes, and the trial court improperly relied on judicial notice of criminal proceedings without proper request.
The summary judgment is reversed because (1) the supporting affidavit failed to comply with Florida Rule of Civil Procedure 1.510(e) as it was not made on personal knowledge and did not establish the affiant's competence; (2) material factual disputes remained; and (3) the trial court improperly relied on judicial notice of criminal proceedings that were not mentioned in or requested by the motion for summary judgment.
[1] An affidavit supporting a motion for summary judgment must be made on personal knowledge and demonstrate the affiant's competence to testify to the matters stated therein…
[2] A court may not properly rely on matters not mentioned in a motion for summary judgment or not requested to be judicially noticed in granting summary judgment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The affidavit supporting the summary judgment from appel-lee's attorney was not made on personal knowledge, nor does it appear from the affidavit that the affiant is competent to testify to all the matters stated therein. Thus, it does not comply with the requirements of Florida Rule of Civil Procedure 1.510(e).”
Establishes the procedural deficiency in the affidavit supporting summary judgment
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Join FLexlaw to unlock all legal intelligenceA public employee was acquitted of criminal charges. The trial court granted summary judgment requiring the city to pay the employee's attorney's fees…
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PER CURIAM.
The summary judgment entered in this case is reversed. The affidavit supporting the summary judgment from appel-lee’s attorney was not made on personal knowledge, nor does it appear from the affidavit that the affiant is competent to testify to all the matters stated therein.
Thus, it does not comply with the requirements of Florida Rule of Civil Procedure 1.510(e). The affidavit does not lead to the conclusion that there is no material issue of fact.
Furthermore, although the court order recites that it took judicial notice of proceedings in a criminal trial, which is material to these proceedings, the motion for summary judgment nowhere mentions the proceedings or requests the court to take judicial notice of the same.
Thus, they could not properly be relied on by the court in granting summary judgment. Fla. R.Civ.P. 1.510(c) and cf. Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).
Therefore, the entry of summary judgment reflecting findings of fact not supported by the record is error.
The trial court found in entering summary judgment that a public employee acquitted of a criminal charge against him was entitled to have the city pay for his attorney’s fees in defense of the charge where the charges were “inextricably intertwined” with the charges against a former mayor arising out of the performance of the Mayor’s public duties, citing Lomelo v. Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982). We do not need to discuss the application or extension of Lomelo v. Sunrise to this case as yet. It would be premature to rule on this applicability without settling the underlying facts in the matter.
Thus, our reversal on procedural grounds should not imply tacit acceptance of an extension of Lomelo to employees as well as officers. We do not see how charges of witness tampering in connection with grand jury testimony can be construed as inextricably intertwined with and arising out of the performance of appellee’s public duties.
However, that may show the level of uncertainty as to the facts of this case and why summary judgment for appellee was inappropriate.
Reversed and remanded for further proceedings.
HERSEY, C.J., and WALDEN and WARNER, JJ., concur.
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Johnell Daythwon Lang v. State, 228 So. 3d 153 (Fla. 4th DCA 2017)…ying criminal offenses on which prior violations of probation had been filed. The prosecutor never mentioned the 2011 incident, which was a separate charge and separate file, and did not request that the judge view it. See City of Sunrise v. Hinton, 569 So. 2d 891, 891 (Fla. 4th DCA 1990) (noting a party must request the court to take notice of other proceedings); see Kelley v. Kelley, 75 So. 2d 191, 193 (Fla. 1954) (“A court should not be required or permitted to browse amongst its own records .. ..where the…
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Leon Cnty. v. Stephen S. Dobson, III, P.A., 917 So. 2d 278 (Fla. 1st DCA 2005)…cial with DOT under Thomber. First, it is important to note that the test provided in Thomber applies to “public officials.” In Thornber, the supreme court did not provide a definition of the term. Additionally, DOT cites City of Sunrise v. Hinton, 569 So. 2d 891 (Fla. 4th DCA 1990), in support of its position. There, the Fourth District reversed an award of attorneys’ fees to a public employee because the facts presented were not sufficient to award summary judgment. Indeed, such an analysis does require a…
Authorities Cited
- Lomelo v. City OF Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982)
- Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989)