39 Fla. L. Weekly D1604b
Torts — Summary judgment — Trial court erred in effectively
granting defendant’s motion for summary judgment under the guise of a motion in
limine — Motion in limine was used to grant summary judgment without affording
plaintiff required notice — Hearing on motion in limine may not serve as a
vehicle for presentation of an unnoticed motion for summary judgment
granting defendant’s motion for summary judgment under the guise of a motion in
limine — Motion in limine was used to grant summary judgment without affording
plaintiff required notice — Hearing on motion in limine may not serve as a
vehicle for presentation of an unnoticed motion for summary judgment
ANTONIO OTERO, Appellant, v. GILBERTO GOMEZ, III, Appellee. 3rd District.
Case No. 3D13-936. L.T. Case No. 11-43840. July 30, 2014. An Appeal from the
Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Counsel: Maria L.
Rubio, P.A., and Maria L. Rubio, for appellant. Cole, Scott & Kissane, P.A.,
and Scott A. Cole, for appellee.
Case No. 3D13-936. L.T. Case No. 11-43840. July 30, 2014. An Appeal from the
Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Counsel: Maria L.
Rubio, P.A., and Maria L. Rubio, for appellant. Cole, Scott & Kissane, P.A.,
and Scott A. Cole, for appellee.
(Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.)
(PER CURIAM.) Appellant, Antonio Otero, Plaintiff below, appeals from the
trial court’s March 13, 2013, Order Granting Defendant’s Motion in Limine and
Amendment to Motion in Limine, and March 26, 2013, Final Judgment. Because the
trial court effectively granted Defendant-Appellee Gilberto Gomez, III’s (Gomez)
untimely motion for summary judgment, we reverse and remand for further
proceedings.
trial court’s March 13, 2013, Order Granting Defendant’s Motion in Limine and
Amendment to Motion in Limine, and March 26, 2013, Final Judgment. Because the
trial court effectively granted Defendant-Appellee Gilberto Gomez, III’s (Gomez)
untimely motion for summary judgment, we reverse and remand for further
proceedings.
I. Facts
In December 2011, Otero filed a complaint for injuries he sustained after
being hit by a car1 while riding his
bicycle. Otero rode along a sidewalk and into a crosswalk when he was hit by a
car pulling into the intersection. Otero alleged that his view of oncoming
traffic was obstructed by a wall, which had, years before, been constructed on
Gomez’s property.
being hit by a car1 while riding his
bicycle. Otero rode along a sidewalk and into a crosswalk when he was hit by a
car pulling into the intersection. Otero alleged that his view of oncoming
traffic was obstructed by a wall, which had, years before, been constructed on
Gomez’s property.
The wall was built by the developer of the area and then altered without
permits by the prior owner. Otero contended the wall constituted a dangerous
condition and that Gomez was negligent for either creating the condition or
allowing the condition to exist.
permits by the prior owner. Otero contended the wall constituted a dangerous
condition and that Gomez was negligent for either creating the condition or
allowing the condition to exist.
Otero sought to introduce the expert witness testimony of Richard E. Cabrera.
Cabrera was going to testify at trial that the wall on Gomez’s property
obstructed a “sight triangle,” and that the wall’s obstruction of drivers’
lines-of-sight violated certain county ordinances and Florida Department of
Transportation (FDOT) standards.
Cabrera was going to testify at trial that the wall on Gomez’s property
obstructed a “sight triangle,” and that the wall’s obstruction of drivers’
lines-of-sight violated certain county ordinances and Florida Department of
Transportation (FDOT) standards.
On February 15, 2013, Gomez timely filed a motion in limine to exclude
Cabrera’s testimony. Gomez argued that any evidence concerning county
ordinances, “sight triangles,” and property violations, was not relevant because
Gomez owed no duty to Otero under Williams v. Davis, 974 So. 2d 1052
(Fla. 2007).2
Cabrera’s testimony. Gomez argued that any evidence concerning county
ordinances, “sight triangles,” and property violations, was not relevant because
Gomez owed no duty to Otero under Williams v. Davis, 974 So. 2d 1052
(Fla. 2007).2
Four days after filing his motion in limine — on February 19, 2013 — Gomez
filed a motion for summary judgment, again relying on Williams. Gomez
argued that, because the wall on his property did not extend into the public
right-of-way, he owed no duty to Otero, and, therefore, could not be liable as a
matter of law. The record is devoid of any notice of hearing on the motion for
summary judgment.
filed a motion for summary judgment, again relying on Williams. Gomez
argued that, because the wall on his property did not extend into the public
right-of-way, he owed no duty to Otero, and, therefore, could not be liable as a
matter of law. The record is devoid of any notice of hearing on the motion for
summary judgment.
During the pretrial conference on February 21, the trial court informed Gomez
that his motion for summary judgment would not be heard before trial.3
that his motion for summary judgment would not be heard before trial.3
On February 27, only days before the commencement of trial, Gomez amended his
previously-filed motion in limine. The amended motion sought an order excluding
the introduction of any evidence regarding FDOT design standards and contained
the same arguments as did the motion for summary judgment. Essentially, Gomez
argued he owed no duty to Otero and could not “be liable as a matter of law, for
an alleged obstruction which exists entirely on his property and does not
protrude into the public right-of-way.”
previously-filed motion in limine. The amended motion sought an order excluding
the introduction of any evidence regarding FDOT design standards and contained
the same arguments as did the motion for summary judgment. Essentially, Gomez
argued he owed no duty to Otero and could not “be liable as a matter of law, for
an alleged obstruction which exists entirely on his property and does not
protrude into the public right-of-way.”
Prior to the trial commencing, on March 5, the trial court heard the parties’
pretrial motions, including Gomez’s motion in limine and Gomez’s amended motion
in limine. Gomez’s counsel argued that, because the wall at issue was entirely
within the boundaries of Gomez’s property, Gomez owed no duty to Otero. Notably,
while Gomez’s counsel sought to have the case dismissed by the trial court at
the “motion in limine stage,” neither of Gomez’s motions in limine requested, as
relief, that the case be dismissed; the motions merely sought orders excluding
evidence which Gomez argued was not relevant.
pretrial motions, including Gomez’s motion in limine and Gomez’s amended motion
in limine. Gomez’s counsel argued that, because the wall at issue was entirely
within the boundaries of Gomez’s property, Gomez owed no duty to Otero. Notably,
while Gomez’s counsel sought to have the case dismissed by the trial court at
the “motion in limine stage,” neither of Gomez’s motions in limine requested, as
relief, that the case be dismissed; the motions merely sought orders excluding
evidence which Gomez argued was not relevant.
Indeed, on several occasions, the trial court queried, “Shouldn’t this be a
motion for directed verdict?” At the conclusion of the hearing, the trial court
reserved ruling on Gomez’s motions in limine and voir dire began.
motion for directed verdict?” At the conclusion of the hearing, the trial court
reserved ruling on Gomez’s motions in limine and voir dire began.
The following morning, on March 6, the trial court announced, “I’m ready to
rule on the motion in limine on the issue of duty.” It proceeded:
rule on the motion in limine on the issue of duty.” It proceeded:
After reading Williams . . . I find that there is no duty on
behalf of the homeowner to the public when the property — when the wall is in
his property, within his boundaries. I don’t want to make that ruling, but in
good conscience, I have no choice.
Your motion is granted.
Gomez’s counsel then moved, ore tenus,4
to dismiss the complaint, and the trial court granted the motion and cancelled
the trial. On March 13, the trial court entered an order granting Gomez’s
motions in limine. Subsequently, a final judgment was entered March 26, in favor
of Gomez. This appeal followed.
to dismiss the complaint, and the trial court granted the motion and cancelled
the trial. On March 13, the trial court entered an order granting Gomez’s
motions in limine. Subsequently, a final judgment was entered March 26, in favor
of Gomez. This appeal followed.
II. Analysis
The issue before us is whether the trial court erred in effectively granting
a motion for summary judgment under the guise of a motion in limine.
a motion for summary judgment under the guise of a motion in limine.
Pursuant to Florida Rule of Civil Procedure 1.510(c), a party moving for
summary judgment must serve its motion on the adverse party at least twenty days
prior to the time specified for the hearing on the summary judgment motion.
summary judgment must serve its motion on the adverse party at least twenty days
prior to the time specified for the hearing on the summary judgment motion.
The record reflects Gomez filed his motion for summary judgment on February
19, fourteen days prior to the March 5 commencement of trial when the trial
court essentially conducted the unnoticed hearing on Gomez’s summary judgment
motion. Gomez violated the requisites of Rule 1.510(c) by failing to notice and
set the motion for hearing at least twenty days after the filing of the summary
judgment motion. See Brock v. G.D. Searle & Co., 530 So. 2d
428, 430 (Fla. 1st DCA 1988) (“It is reversible error for a trial court to grant
summary judgment based on a motion which fails to comply with the 20-day notice
requirement.”).
19, fourteen days prior to the March 5 commencement of trial when the trial
court essentially conducted the unnoticed hearing on Gomez’s summary judgment
motion. Gomez violated the requisites of Rule 1.510(c) by failing to notice and
set the motion for hearing at least twenty days after the filing of the summary
judgment motion. See Brock v. G.D. Searle & Co., 530 So. 2d
428, 430 (Fla. 1st DCA 1988) (“It is reversible error for a trial court to grant
summary judgment based on a motion which fails to comply with the 20-day notice
requirement.”).
As additional grounds for reversal, we note that it is well settled that a
hearing on a motion in limine “may not serve as a vehicle for presentation of an
unnoticed motion for summary judgment.” Fouts v. Bowling, 596 So. 2d 95,
95 (Fla. 3d DCA 1992); see also Connell v. Cap. City Partners,
LLC, 932 So. 2d 442, 444 (Fla. 3d DCA 2006); Wizikowski v. Hillsborough
Cnty., 651 So. 2d 1223 (Fla. 2d DCA 1995).
hearing on a motion in limine “may not serve as a vehicle for presentation of an
unnoticed motion for summary judgment.” Fouts v. Bowling, 596 So. 2d 95,
95 (Fla. 3d DCA 1992); see also Connell v. Cap. City Partners,
LLC, 932 So. 2d 442, 444 (Fla. 3d DCA 2006); Wizikowski v. Hillsborough
Cnty., 651 So. 2d 1223 (Fla. 2d DCA 1995).
Also, it is well settled that a court is without authority to grant relief
not requested by a party in the pleading. See Bank of N.Y. Mellon v.
Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013) (stating courts are
unauthorized to grant relief not requested in the pleadings). The trial court
dismissed Otero’s case on the merits despite neither motion in limine requesting
such relief.
not requested by a party in the pleading. See Bank of N.Y. Mellon v.
Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013) (stating courts are
unauthorized to grant relief not requested in the pleadings). The trial court
dismissed Otero’s case on the merits despite neither motion in limine requesting
such relief.
Because Gomez’s motion in limine was used as a vehicle to grant summary
judgment without affording Otero the required notice, the final judgment entered
by the trial court must be reversed. See Brock, 530 So. 2d at 430
(holding that such a ruling constitutes reversible error); Connell, 932
So. 2d at 444 (“[T]he granting of relief, which is not sought by the notice of
hearing or which expands the scope of a hearing and decides matters not noticed
for hearing, violates due process.”).
judgment without affording Otero the required notice, the final judgment entered
by the trial court must be reversed. See Brock, 530 So. 2d at 430
(holding that such a ruling constitutes reversible error); Connell, 932
So. 2d at 444 (“[T]he granting of relief, which is not sought by the notice of
hearing or which expands the scope of a hearing and decides matters not noticed
for hearing, violates due process.”).
We reverse and remand the case for further proceedings.5
__________________
1The driver is a nonparty.
2In Williams, the Florida Supreme
Court considered whether the foreseeable zone of risk analysis espoused in
McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), applies to
private owners of residential property. Specifically, the Williams court
concluded that a private landowner owes no duty to a motorist for torts arising
from foliage located wholly within the bounds of the landowner’s property.
Williams held:
[W]hile the McCain foreseeable zone of risk analysis applies,
we conclude that under that analysis owners of private property do not owe a
duty to motorists on abutting roadways as to the maintenance of foliage located
wholly within the bounds of the property. We do recognize, however, that all
property owners owe a duty, under a McCain analysis, not to permit the
growth of foliage on their property to extend outside the bounds of the property
and into the public right-of-way so as to interfere with a motorist’s ability to
safely travel on the adjacent roadway.
Id. at 1054.
3The trial court stated, “We should have
had this already heard a long time ago. You know, a motion to dismiss or a
motion for summary judgment.”
4The trial court stated, “Motion is
granted, but I’d really rather have it in writing in an order.”
5We express no opinion as to the merits of
Gomez’s summary judgment motion.
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