KENDALL COMMERCIAL ASSOCIATES, LLC, ETC., APPELLANT,
v.
DRAKES, LLC, ET. AL., APPELLEES
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The court reversed summary judgment granted to guarantors because the trial court awarded relief not sought in the motion and without proper notice to the opposing party.
Summary judgment in favor of guarantors must be reversed when granted without notice and without the guarantors seeking relief in their motion.
[1] Summary judgment cannot be granted in favor of parties who did not seek relief in the motion for summary judgment without proper notice to the opposing party.
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Explaining why summary judgment for the guarantors must be reversed
Kendall Commercial Associates, a landlord, appealed a summary judgment order favoring Drake's, LLC (tenant) and seven individual guarantors on Kendall…
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Kendall Commercial Associates, LLC, etc., appeals the trial court’s order entering summary judgment in favor of Drake’s, LLC and seven individual guarantors on all counts of Kendall’s amended counterclaim in the underlying landlord-tenant action. We reverse because the trial court granted relief that was neither sought in the summary judgment motion nor noticed for hearing.
The order on appeal granted summary judgment on the amended counterclaim in favor of the tenant, Drake’s, LLC, and in favor of seven guarantors/third-party defendants. However, the motion for summary judgment filed by Drake’s, LLC only sought relief on behalf of Drake’s, LLC. Because there was no notice to Kendall, the landlord, that relief was being sought *719on behalf of the guarantors, and the trial court granted relief not pled or sought in Drake’s, LLC’s motion, we reverse the order granting summary judgment as to the guarantors. See Hotel 71 Mezz Lender, LLC v. Tutt, 66 So.3d 1051 (Fla. 3d DCA 2011).
We additionally dismiss the remainder of this appeal for lack of jurisdiction, as the remaining portion of the order on appeal is not an appealable partial final judgment under Florida Rule of Appellate Procedure 9.110(k).
Reversed in part and remanded; appeal dismissed in part.
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Cited By
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Abundant Living Citi Church, Inc. v. Abundant Living Ministries, Inc., 213 So. 3d 1055 (Fla. 3d DCA 2017)…ference to take testimony to dispose of case without summary judgment notice). Further, a trial court may not short-circuit the summary judgment process by neglecting elements of rule 1.510. See, e.g., Kendall Commercial Assocs., LLC v. Drakes, LLC, 163 So. 3d 718, 718-719 (Fla. 3d DCA 2015) (holding that grant of summary judgment without notice and based on relief unpled is improper); Schrank v. Pearlman, 683 So. 2d 559, 563 (Fla. 3d DCA 1996) (observing that summary judgment cannot be based on un-sworn proo…
Authorities Cited
- Hotel 71 Mezz Lender, LLC v. Tutt, 66 So. 3d 1051 (Fla. 3d DCA 2011)