SAMPLE FLORIDA APPELLATE BRIEF

PROCEDURAL HISTORY

Plaintiff filed a Second Amended Complaint on or around XXXXXXXXXX. [App1]

Defendants filed an Answer to plaintiff's Second Amended Complaint on or around XXXXXXXXXX. [App5]

Defendants filed a Motion for Summary Judgment on or around XXXXXXXXXX. [App8]

Plaintiff filed a Motion to Dismiss defendants' Motion for Summary Judgment on or around XXXXXXXXXX. [App23]

The trial court entered an Order granting defendants' Motion for Summary Judgment on or around XXXXXXXXXX. [App47]

The trial court entered an Order denying plaintiff's Motion to dismiss defendants' Motion for Summary Judgment on or around XXXXXXXXXX. [App49]

The trial court entered a Final Order on or around June 7, 2006. [App50]

Plaintiff filed a Motion for Reargument on or around XXXXXXXXXX. [App51]

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Defendants filed a Memorandum in Opposition to Plaintiff's Motion for Reargument on or around XXXXXXXXXX. [App58] That motion has never been adjudicated by the trial court.

Plaintiff filed a Notice of Appeal on or around XXXXXXXXXX. [App73]

On or around XXXXXXXXXX, plaintiff filed a Docketing Statement and Notice of Appearance of Counsel. [App67]

On or around XXXXXXXXXX, plaintiff filed an Amended Docketing Statement and Notice of Appearance of Counsel. [App64]

On or around XXXXXXXXXX, defendants filed a Memorandum of Law in Opposition to Plaintiff's Motion to Strike Defendants' Memorandum in Opposition to Plaintiff's Motion for Reconsideration of Summary Judgment and Plaintiff's Affidavit. [App80]

On or around XXXXXXXXXX, plaintiff filed a Motion to Supplement the Record with a copy of Plaintiff's Motion to Strike Defendant's Memorandum in Opposition to Plaintiff's Motion for Reconsideration of Summary Judgment and Plaintiff's Affidavit. [App74]

STATEMENT OF THE CASE AND OF THE FACTS

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Plaintiff filed a Second Amended Complaint on XXXXXXXXXX alleging that her attorneys, Defendants XXXXXXXXXXXX, Esq., and the Law Offices of XXXXXXXXXXXXXXXX, P.A., breached a professional duty due to her by, inter alia, abandoning her two weeks before a critical administrative hearing that resulted in her loss of Medicaid benefits for her adult day care business. [App1]

The defendants filed an Answer that asserted various affirmative defenses, not including that plaintiff had failed to timely pay legal fees and costs due to defendants. [App5]

Defendants filed a motion for summary judgment based nearly entirely on that defense. [App8] Plaintiff responded with a motion to strike their motion for summary judgment since the asserted defense was not raised in the defendants' Answer. [App23] The trial court disregarded plaintiffs' argument and dismissed the motion notwithstanding that there were material facts in dispute. [App47, 49] The disputed material facts included whether plaintiff had offered defendants payment via credit card and whether defendants refused to accept the payment. [App53]

Plaintiff filed a timely Notice of Appeal. [App64, 67]

SUMMARY OF THE ARGUMENT

The trial court erred by allowing the defendants to raise defenses during a motion for summary judgment that were not asserted in the defendants' Answer and by granting the motion for summary judgment where material facts were in dispute. The trial court made credibility determinations during the motion.

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STANDARD OF REVIEW

"The standard of review of an order granting summary judgment is de novo." Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006), quoting Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)".

ARGUMENT

I. THE TRIAL COURT ERRED BY ALLOWING DEFENDANTS TO RAISE DEFENSES IN THEIR MOTION FOR SUMMARY JUDGMENT WITHOUT LEAVE OF COURT THAT WERE NOT ASSERTED IN DEFENDANTS' ANSWER

Defendants' Motion for Summary Judgment asserted a defense that the defendants were entitled to withdrawal as plaintiff's counsel pursuant to a clause in the Retainer Agreement that allegedly allowed the defendants to withdrawal as plaintiff's counsel for non-payment of attorney's fees. [App8] In fact, that was the only argument made in defendants' motion.
Plaintiff responded to their motion with a Motion to Dismiss Summary Judgment Motion that incorporated her response to the defendants' motion. [App23] Plaintiff argued in her motion that the defendants' did not assert the defense of non-payment of fees in their Answer to her Complaint. [App25-26] A copy of the Complaint is reproduced in the Appendix at App1. A copy of the Answer is reproduced in the Appendix at App5.

The trial court erred by allowing defendants to raise issues during a motion for summary judgment that were not raised in their Answer. "[E]very defense in law or fact shall be asserted in the responsive pleading. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading". Florida Rule of Civil Procedure 1.140(b).

The most recent analogous caselaw on this issue is Sun Valley Homeowners, Inc. v. American Land Lease, Inc., 927 So.2d 259 (Fla. 2nd DCA 2006). There, like here, defenses were asserted for the first time on a motion for summary judgment. The defenses were not asserted in the party's Answer. The trial court allowed the defenses to be raised notwithstanding, granted the motion for summary judgment and the aggrieved party appealed. On appeal, the Second District Court of Appeals held that the question under such circumstances is whether a party will be prejudiced by allowing the defenses to be raised for the first time during a motion for summary judgment. Id. at 263. The court wrote that,

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Sun Valley Homeowners has at no point-either before the trial court or in this appeal-presented any argument that it was prejudiced by American Land Lease's raising the capacity issue in its motion for summary judgment. Indeed, when the trial court raised the issue of prejudice, Sun Valley Homeowners' counsel stood mute. Since Sun Valley Homeowners failed in the trial court proceedings to make any showing of prejudice, the trial court properly permitted American Land Lease to raise the capacity to sue issue by way of the motion for summary judgment.

Id.

The First District Court of Appeals, however, has held that not raising an affirmative defense in an Answer constitutes a waiver of the defense. "Appellant argues, correctly, that, subject to certain exceptions not applicable here, affirmative defenses not alleged in the answer are deemed waived." Mangum v. Susser, 764 So.2d 653, 655-56 (Fla. 1st DCA 2000), citing Fla. R. Civ. P. 1.140(b) & (h), and Bilow v. Benoit, 519 So. 2d 1114 (Fla. 1st DCA 1968).

Notwithstanding that Sun Valley Homeowners Association, Inc., supra, is not controlling in this District, the case at bar is distinguished from it in that the court below in the case at bar did not raise the question of whether plaintiff was prejudiced by any means by allowing the untimely amendment. Plaintiff in this regard had no opportunity to present her arguments. In that case the appellant did not raise the issue of prejudice in the appellate brief, whereas that issue is being raised herein. Finally, in that case the trial court made findings of fact and conclusions of law as to why the court allowed the late amendments. There is no record in the case at bar as to why the court made that decision.

In the case at bar, the plaintiff was prejudiced by the untimely amendment because she was not afforded an opportunity to obtain discovery for her defense. Plaintiff could have deposed the defendants and their staff about her telephone call offering to make the payment by credit card (the defendants accept credit cards for payment of legal fees).

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II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT BECAUSE MATERIAL FACTS WERE IN DISPUTE

Summary judgment may not be granted unless there is an absence of material disputed facts. "The judgment sought shall be rendered forthwith if the … evidence on file show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c).

A. Payment Offered by Credit Card.

Plaintiff's responsive motion argued that she offered to pay the outstanding legal fees on her credit card. [App25] Defendants admitted during discovery that a VISA payment was offered. [App53] The defendants provided no response.

"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). See also Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005) (a court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment).

B. Misguided Legal Advice.

Plaintiff alleged that Defendant XXXX advised her that she should not resubmit her application [App26-27], yet her argued in his motion for summary judgment that her claims against him are barred because she failed to do so. [App9] That is a completely self-serving argument. "To grant summary judgment in this case, the trial court would have to find TRG's conclusory self-serving testimony competent, while finding the plaintiffs' somewhat less conclusory testimony incompetent. This would be improper." Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480 (Fla. 4th DCA 2006). This would also require a credibility determination. See Point II(A), supra.

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C. Lack of Specialized Skill.

Plaintiff alleges that Defendant XXXX lacked knowledge and skill in administrative law, notwithstanding that he was represented to her as being an expert. Mr. XXXX is not even listed by his own law firm as being an administrative law attorney. [App27] His advising plaintiff on issues that he is not experienced in would constitute an action of professional negligence. This was in dispute during the motion for summary judgment.

CONCLUSION

The First District Court of Appeals should reverse the Order of Summary Judgment and remand this matter to the trial court for further proceedings, including trial.

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CERTIFICATION OF SERVICE

This is to certify that on _________________________________, I, XXXXXX XXXXXX, mailed a copy of this brief and appendix upon appellee's attorney, XXXXXXXXXXXXXXX, Esq., at XXXXXXXXXXXXXXXXXXXXXX, via Certified Mail Return Receipt Requested.

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CERTIFICATION OF COMPLIANCE

This is to certify that the undersigned has complied with Florida Rule 9.100(1), including the font and margin requirements.

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