Florida Court Cases - Case Law and Opinions from the Courts of Florida - unoffical reports - Opinions

ROMINGER LEGAL

Florida Case Law & Florida Court Opinions - Florida Law

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FLORIDA DEPARTMENT OF
NOT FINAL UNTIL TIME EXPIRES TO
FINANCIAL SERVICES,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NOS. 1D03-0538 & 1D03-0542
A S S O C I A T E D I N D U S T R I E S
INSURANCE COMPANY, INC.,
Appellee.
&
A S S O C I A T E D I N D U S T R I E S
INSURANCE COMPANY, INC.,
Cross-Appellant,
v.
FLORIDA DEPARTMENT OF
FINANCIAL SERVICES,
Cross-Appellee.
_____________________________/
Opinion filed February 6, 2004.
An appeal from an order of the Circuit Court for Leon County.
Janet E. Ferris, Judge.

Charlie Crist, Attorney General; Christopher M. Kise, Solicitor General and Louis F.
Hubener, Chief Deputy Solicitor General, Tallahassee, for Appellant.
Elliot B. Kula, Esq. of Greenberg Traurig, P.A., Miami; Barry Richard, Esq. of
Greenberg Traurig, P.A., Tallahassee, for Appellee.
PER CURIAM.
Appellant/Cross-Appellee, the Florida Department of Financial Services
("DFS"), appeals the trial court's Corrected Final Judgment determining that the
Florida Department of Labor and Employment Security ("DLES")1 was entitled to
recover $3,253,657 from appellee/cross-appellant, Associated Industries Insurance
Company ("AIIC"), as a result of AIIC's deduction of ceded reinsurance premiums
from its annual assessments for Florida's Special Disability Trust Fund and Workers'
Compensation Administration Trust Fund in the year 2000. DFS had sought to
recover $5,551,281 in underpaid assessments from AIIC. DFS contends that the trial
court erred in failing to strike the supplemental affidavit of Mary Ann Stiles filed on
April 5, 2002, by AIIC in support of its motion for summary judgment because of the
affidavit's improper content and its untimeliness. We agree and, therefore, reverse the
Corrected Final Judgment and remand for further proceedings.
As to the content of the supplemental affidavit, pursuant to Florida Rule of Civil
1 The proceedings below occurred when DLES administered the workers' compensation laws.
The Division of Workers' Compensation was subsequently transferred to DFS, the appellant in this appeal.

Procedure 1.510(e), supporting and opposing affidavits for summary judgment "shall
be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein. . . . The court may permit affidavits to be supplemented or
opposed by . . . further affidavits." An affidavit in support of summary judgment may
not be based on factual conclusions or conclusions of law. Jones Constr. Co. of
Cent. Fla., Inc. v. Fla. Workers' Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA
2001). "The purpose of the personal knowledge requirement is to prevent the trial
court from relying on hearsay when ruling on a motion for summary judgment . . . and
to ensure that there is an admissible evidentiary basis for the case rather than mere
supposition or belief." Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965,
966 (Fla. 1st DCA 1988).
Stiles' supplemental affidavit contains statements that are not based upon her
personal knowledge. Rather, Stiles' statements are based upon her "understanding"
of the underlying issues and her "opinion" of such issues. Moreover, Stiles'
supplemental affidavit contains inadmissible hearsay evidence.
With respect to the timeliness of the supplemental affidavit, while a trial court
may permit affidavits to be supplemented by additional affidavits, we have previously
held that, under rule 1.510(e), a movant may file supplemental affidavits less than
2

twenty days prior to the summary judgment hearing only upon written stipulation and
agreement by the adverse party affected or upon leave of court granted by written
order after written application, notice to the adverse party, and the opportunity for a
hearing. See Marlar v. Quincy State Bank, 463 So. 2d 1233, 1234 (Fla. 1st DCA
1985). This construction of rule 1.510(e) properly advances the policy that a party
opposing a summary judgment motion must be given adequate time to respond. See
Gulliver v. Tex. Commerce Bank, 787 So. 2d 256, 259 (Fla. 5th DCA 2001).
Here, there was no written stipulation or leave of court to file the supplemental
affidavit. Furthermore, AIIC provided the affidavit to DLES only three days prior to
the summary judgment hearing. As a result, DLES was not provided sufficient time
to respond to the affidavit.
Accordingly, the trial court erred in not striking Stiles' supplemental affidavit.
Because it appears that the trial court relied upon this affidavit in granting AIIC's
motion for summary judgment, we reverse the Corrected Final Judgment and remand
for further proceedings consistent with this opinion. We note that our disposition as
to this issue has rendered our consideration of the remaining issues on appeal and the
issues on cross-appeal unnecessary.
REVERSED and REMANDED for further proceedings.
WEBSTER, LEWIS and HAWKES, JJ., CONCUR.
3

	ROMINGER LEGAL
		Florida Case Law & Florida Court Opinions - Florida Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE