41
Fla. L. Weekly D2696aTop of Form

Insurance
— Commercial automobile policy — Pretrial stipulation — Where insured
brought declaratory judgment action seeking declaration that there was a theft
of insured’s truck under terms of policy, and parties’ joint pretrial
stipulation established that the only issue for determination by jury was
whether insured’s truck had been lost due to theft, trial court erred in
exceeding the scope of the pretrial stipulation by making separate finding that
insured failed to establish damages after declaratory judgment had been entered
in favor of insured — Insurer’s motion for summary judgment alleging that
policy was cancelled prior to theft of insured’s truck was properly denied
where documents in support of motion for summary judgment were neither verified
nor authenticated — Although documents offered to prove cancellation were also
attached to sworn deposition of insurer’s representative, the documents could
not be used as proper summary judgment evidence where the documents were not
sufficiently authenticated under the business records exception to the hearsay
rule

S
& M TRANSPORTATION, INC., ETC., Appellant/Cross-Appellee, v. NORTHLAND
INSURANCE COMPANY, ETC., Appellee/Cross-Appellant. 5th District. Case No.
5D14-4401. Opinion filed December 2, 2016. Appeal from the Circuit Court for
Orange County, Donald A. Myers, Jr., Judge. Counsel: V. Rand Saltsgaver, of Law
Offices of Rand Saltsgaver, and Charles Parker, Jr., of Mapp & Parker,
P.A., Orlando, for Appellant/Cross-Appellee. Maureen G. Pearcy, Andrew E.
Grigsby, and John J. Cavo, of Hinshaw & Culbertson LLP, Coral Gables, for
Appellee/Cross-Appellant.

(CRAGGS,
A.M., Associate Judge.) S & M Transportation, Inc., (“S&M”) appeals and
Northland Insurance Co. (“Northland”) cross-appeals the trial court’s “Final
Declaratory Judgment for the Plaintiff, S&M Transportation, Inc.” entered
following a jury trial.1 S&M argues that the trial court
erred as a matter of law when it separately made findings of fact in the final
declaratory judgment regarding S&M’s failure to establish damages, where
the parties’ joint pretrial stipulation established that the only issue for
determination by the jury was whether S&M’s Freightliner truck had been
lost due to theft. In its cross-appeal, Northland argues that the trial court
erred by denying its motion for summary final judgment and its post-trial
motion to correct the final declaratory judgment. Concluding that the trial
court erred when it made findings exceeding the scope of the parties’ joint
pretrial stipulation, we reverse the final declaratory judgment.2 We affirm on Northland’s
cross-appeal.

In
this case, Northland issued a one-year commercial automobile policy to S&M
that insured the truck at issue. S&M contracted with Broadway Premium
Funding (“Broadway”) to finance the premiums owed on the insurance policy.
Sometime after 12:01 a.m. on May 21, 2010, S&M’s truck was allegedly
stolen, resulting in S&M filing a claim with Northland under the policy for
the loss of the truck by theft. Northland denied coverage, asserting that it no
longer had contractual responsibility to S&M for the claim because the
policy had been cancelled, effective at 12:01 a.m. on May 21, 2010, due to
S&M’s non-payment of the monthly premium to Broadway. Thereafter, S&M
filed a complaint, seeking a declaration of its rights under the policy,
alleging, in part, that its truck had been stolen, that it had filed a claim
under its policy with Northland, and that Northland wrongfully denied coverage
for the loss under the policy.

After
filing its answer and conducting discovery, Northland filed a motion for
summary final judgment regarding one of its affirmative defenses, asserting
that the policy was cancelled prior to the theft and, therefore, Northland was
not liable for coverage. Northland attempted to prove cancellation of the
policy by attaching to its summary judgment motion copies of certain documents,
including: the cancellation notice from Broadway to Northland’s agent, J.M.
Wilson; the notice of cancellation from Northland to S&M; and the notice of
intent to cancel from Broadway to S&M. Although none of these documents
attached to Northland’s motion were verified or authenticated by separate
affidavit, they were attached to the sworn deposition of Northland’s
representative, Drew Johnson, which had been filed with the court in advance of
the summary judgment hearing. The trial court denied Northland’s motion for
summary judgment by unelaborated order.

At
a pretrial conference, the parties represented to the court that the sole issue
to be resolved at trial was whether, under the terms of the policy, there was a
theft of S&M’s truck. Thereafter, the parties filed a joint pretrial
stipulation wherein they agreed that “[t]his is an action for declaratory
relief as to whether the Plaintiff suffered the loss of the Freightliner
tractor truck from any cause under the comprehensive coverage, or by theft,
pursuant to the Physical Damage provisions of the insurance policy between the
Plaintiff . . . and the Defendant.” At the conclusion of the trial, the jury
specifically found that S&M suffered a loss under the physical damage
provision of the insurance policy with Northland for the theft of the truck.

Thereafter,
the trial court issued the final declaratory judgment under review. The
judgment provided that S&M “suffered a cause of loss that would be covered
under the physical damage provision of the insurance policy with [Northland]
for the theft of its Freightliner tractor truck,” but also went on to find that
“there has been no proof of a loss for recovery of damages that would be
payable under the insurance policy.” Therefore, by its final judgment, the
court essentially determined that there was no covered loss under the policy.

We
find that the trial court erred when it included additional findings in the
final judgment that exceeded the agreed upon issues to be tried by the parties
in the pretrial stipulation. The parties’ pretrial stipulation limited the issues
of fact and law to be presented at trial and decided by the jury. “[T]he
purpose of the pretrial stipulation is to put the parties on notice of what is
in dispute . . . .” Knight v. Walgreens, 109 So. 3d 1224, 1228 (Fla. 1st
DCA 2013) (citing Marin v. Aaron’s Rent to Own, 53 So. 3d 1048 (Fla. 1st
DCA 2010)). Although the parties could have also agreed to have the jury
determine damages, they did not do so, and by their pretrial stipulation, they
limited the only issue for the jury to determine was whether there was a theft
of S&M’s truck that was covered under the insurance policy.

“A
pretrial stipulation limiting the issues to be tried is ‘binding upon the
parties and the court, and should be strictly enforced.’ ” LPI/Key W.
Assocs., Ltd. v. Beachcomber Jewelers, Inc., 77 So. 3d 852, 854 (Fla. 3d
DCA 2012) (quoting Broche v. Cohn, 987 So. 2d 124, 127 (Fla. 4th DCA
2008)). Based upon the pretrial stipulation, S&M had no reason to attempt
to establish quantifiable damages at trial. Moreover, Northland did not argue
at trial that S&M should not prevail due to its failure to present evidence
of damages. After the jury determined that S&M suffered a theft that was
covered under the policy, the trial court’s entry of the final declaratory
judgment should have been constrained to the coverage issue alone.
Consequently, the trial court’s additional findings and rulings as to damages
were error.

Turning
to Northland’s cross-appeal, Northland argues that its motion for summary
judgment was improperly denied because the insurance policy issued by Northland
to S&M was cancelled prior to the truck being stolen, thus eliminating
coverage for the theft. As we explain below, we find that the trial court
properly denied Northland’s motion for summary judgment, albeit for the wrong
reasons. Accordingly, pursuant to the “tipsy coachman” doctrine, we affirm the
trial court’s denial of Northland’s motion for summary judgment. See
Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (stating that the
“tipsy coachman” doctrine “allows an appellate court to affirm a trial court
that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is
any basis which would support the judgment in the record’ ” (quoting Dade
Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999))).

To
obtain a summary judgment, Northland had the burden of presenting competent
evidence to support the nonexistence of a genuine issue of material fact. See
Colon v. JP Morgan Chase Bank, NA, 162 So. 3d 195, 197 (Fla. 5th DCA 2015)
(citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)). Northland was
required to “specifically identify any affidavits, answers to interrogatories,
admissions, depositions, and other materials as would be admissible in
evidence” on which it relied. Fla. R. Civ. P. 1.510(c). Additionally,
supporting affidavits must

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. Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto or served
therewith.

Id.
at 1.510(e).

As
previously described, Northland attached to its motion for summary judgment
documents that were neither verified nor authenticated in support of its
defense that the policy was cancelled prior to the theft of the truck.
“[M]erely attaching an unsworn document . . . to a motion for summary judgment
does not, without more, satisfy the procedural strictures inherent in Florida
Rule of Civil Procedure 1.510(e).” First Union Nat’l Bank of Fla. v. Ruiz,
785 So. 2d 589, 591 (Fla. 5th DCA 2001) (citing Bifulco v. State Farm Mut.
Auto. Ins. Co., 693 So. 2d 707, 708 (Fla. 4th DCA 1997)). Therefore, the
unverified and unauthenticated copies of the notices of cancellation attached
to Northland’s motion were insufficient for summary judgment purposes because
only competent evidence that would be admissible at trial may be considered in
ruling on a motion for summary judgment. See Bryson v. Branch Banking &
Tr. Co., 75 So. 3d 783, 786 (Fla. 2d DCA 2011) (citations omitted).

We
acknowledge that the documents offered by Northland to prove cancellation were
also attached to the timely filed, sworn deposition of Northland’s representative,
Drew Johnson. Although the documents themselves are hearsay, under certain
circumstances, “business records” can be admissible in evidence as an exception
to the hearsay rule under section 90.803(6)(a), Florida Statutes (2015), and
thus can be competent evidence in support of a motion for summary judgment.
However, for these records to be admissible under this statute, the proponent
must show that

(1) the record was made at or
near the time of the event; (2) was made by or from information transmitted by
a person with knowledge; (3) was kept in the ordinary course of a regularly
conducted business activity; and (4) that it was a regular practice of that
business to make such a record.

Yisrael
v. State, 993 So. 2d 952, 956 (Fla. 2008) (citing Jackson v.
State, 738 So. 2d 382, 386 (Fla. 4th DCA 1999)).

Accordingly,
for Northland to have been able to utilize the cancellation notices attached to
Mr. Johnson’s deposition as proper summary judgment evidence under the business
records exception to the hearsay rule, Mr. Johnson should have testified under
oath as to the predicate requirements for the admissibility of these documents.
See id. (citing § 90.803(6)(a), Fla. Stat. (2004)). Northland’s defense
on this point failed because Northland took no steps to sufficiently
authenticate the documents under the business records exception to the hearsay
rule during Mr. Johnson’s deposition.3 See § 90.803(6)(a), Fla. Stat.
(2015).

Accordingly,
we reverse the trial court’s final declaratory judgment because it included
findings of fact and conclusions of law that exceeded the parameters of the
joint pretrial stipulation of the parties, and we remand for the entry of a
final declaratory judgment consistent with this opinion and the jury’s verdict.4 As a result, we affirm the trial
court’s denial of Northland’s motion to correct the final declaratory judgment.
Finally, we affirm the trial court’s denial of Northland’s motion for summary
final judgment for the reasons stated herein.

REVERSED
and REMANDED with instructions. (ORFINGER and BERGER, JJ., concur.)

__________________

1Even
though the court’s final judgment stated in the title that it was “for”
S&M, as discussed infra, by finding in the judgment that S&M
failed to prove damages, the net effect of the final judgment actually favored
Northland.

2Accordingly,
we find it unnecessary to address S&M’s other issues on appeal.

3Whether
or not Northland’s representative, Drew Johnson, would have been able to lay a
proper predicate for Broadway’s business records and testify regarding those
records is unknown, as Mr. Johnson was never asked the necessary questions to
authenticate the documents during his deposition.

4S&M
filed a post-trial motion for supplemental relief to recover damages. See §
86.011(2), Fla. Stat. (2015) (“Any person seeking a declaratory judgment may
also demand additional, alternative, coercive, subsequent, or supplemental
relief in the same action.”). This motion is not before us because the trial
court had not ruled upon it by the time the notice of appeal was filed.

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