ELMER DAVID PLESCOW, APPELLANT,
v.
GULF STATES ZAYRE, INC., A FOREIGN CORPORATION, AND DAVID BIRCH, APPELLEES
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Appellant Plescow appealed summary judgment orders entered against him in his malicious prosecution, false imprisonment, and false arrest suit against Gulf States Zayre and David Birch. The court reversed, holding that the trial court violated Florida Rules of Civil Procedure Rule 1.510 by taking testimony and resolving credibility issues during a summary judgment hearing, which is procedurally improper.
The trial court erred in issuing the summary judgment orders because it violated Rule 1.510 of the Florida Rules of Civil Procedure by taking testimony, passing on witness credibility, and determining material facts during a summary judgment proceeding. Such factual determinations cannot be properly accomplished during a summary judgment hearing when genuine material issues of fact exist.
[1] A trial court may not grant summary judgment when genuine material factual issues exist that preclude its entry.
[2] A summary judgment hearing is not the proper venue for a trial court to take testimony, assess witness credibility, or determine genuine material facts.
Previewing 2 of 4 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 taking of testimony, passing on the credibility of witnesses, and the determination of genuine material facts cannot be properly accomplished during a hearing for summary judgment”
Establishes the core procedural principle that summary judgment hearings are incompatible with fact-finding and credibility assessments
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Join FLexlaw to unlock all legal intelligencePlescow filed suit against Gulf States Zayre and David Birch for malicious prosecution, false imprisonment, and false arrest. The case was noticed for…
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PER CURIAM.
Appellant, plaintiff below, brought a complaint, as amended, against appellees, defendants below, alleging causes of action for malicious prosecution, false imprisonment, and false arrest. After the cause was noticed for a jury trial, the trial court entered an order, along with pre-trial instructions, setting the cause for trial. Among other things, this order directed the parties to appear before the court on November 10, 1976, for call of the trial calendar. At this time, the cause was continued. Subsequently, pursuant to notice, an evidentiary hearing on the issue of probable cause was held on February 15, 1977, with counsel for all parties present. During this hearing, the court heard testimony from witnesses, received the deposition testimony of a witness, and heard argument of counsel. Thereafter, the court on February 17, 1977, issued an order titled “Order on Evi-dentiary Hearing and Summary Judgment,” and then, on March 3, 1977, it issued an additional order titled “Final Summary Judgment and Order on Probable Cause Hearing.” From these two orders, appellant brings this appeal.
Appellant contends that the trial court erred in issuing the orders of February 17 and March 3, 1977, because they were in violation of Rule 1.510 of the Florida Rules of Civil Procedure. Additionally, appellant contends that the trial court abused its discretion in issuing the orders because, at the time of their issuance, genuine material factual issues existed which precluded the granting of summary judgment.
Appellant’s points are well taken. Rule 1.510 of the Florida Rules of Civil Procedure sets forth the procedure whereby a trial court can render a summary judgment. This Rule and the case law in Florida make clear that the taking of testimony, passing on the credibility of witnesses, and the determination of genuine material facts cannot be properly accomplished during a hearing for summary judgment. E. g., Mutual of Omaha Ins. Co. v. Eakins, 337 So. 2d 418 (Fla.2d DCA 1976); Megdell v. Wieder, 327 So. 2d 781 (Fla.3d DCA 1976); Norman v. Hawthorne, 321 So. 2d 112 (Fla.1st DCA 1975); Rice v. Mercy Hospital, 275 So. 2d 566 (Fla.3d DCA 1973); Coquina Ridge Properties v. East West Company, 255 So. 2d 279 (Fla.4th DCA 1971); and Fla.R.Civ.P. 1.510. The record in the instant case shows that the trial court, when it received and ruled upon the evidence relating to the issue of probable cause, failed to follow the requirements of the principles stated above. Therefore, the orders appealed are reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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Authorities Cited
- Coquina Ridge Props. v. E. W. Co., 255 So. 2d 279 (Fla. 4th DCA 1971)
- Mut. OF Omaha Ins. Co. v. Eakins, 337 So. 2d 418 (Fla. 2d DCA 1976)
- Sol Megdell v. Wieder, 327 So. 2d 781 (Fla. 3d DCA 1976)
- Florus F. Norman v. Bank OF Hawthorne, 321 So. 2d 112 (Fla. 1st DCA 1975)
- S. Bell Tel. & Tel. Co. v. Cnty. OF Dade, 275 So. 2d 566 (Fla. 3d DCA 1973)