Getman v. Tracey Construction, Inc.
2011 Fla. App. LEXIS 9724
| Fla. Dist. Ct. App. | 2011Background
- Daniel Getman (appellant) challenged a final summary judgment in favor of Tracey Construction, Inc. (appellee) in a Florida breach of contract action.
- Tracey filed an unverified three-count complaint—breach of contract, quantum meruit, or lien foreclosure—against Getman.
- Getman did not answer; Tracey moved for summary judgment, and a hearing occurred on Tracey’s motion.
- The trial court granted summary judgment in Tracey’s favor and awarded damages.
- On review, the court held the summary judgment was improper and reversed, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was summary judgment proper where Getman had not answered? | Tracey contends no genuine issues exist; Getman did not answer. | Getman could raise issues if an answer were filed; law requires no genuine issue as to material fact. | Not proper; reversal of summary judgment. |
| Did the trial court apply the correct standard for summary judgment? | Tracey relied on standard that no genuine issue exists. | Court relied on Getman’s failure to file opposing affidavits instead of proper standard. | Incorrect standard applied; judgment reversed. |
| Is the order final and appealable despite lack of explicit execution language? | Finality evidenced by adjudicating the merits; order is appealable. | Execution language not essential but finality must be evident on the face of the order. | Court has jurisdiction; order considered final for appeal purposes. |
Key Cases Cited
- City of Haines City v. Allen, 549 So.2d 678 (Fla. 2d DCA 1989) (finality can be shown without explicit execution language)
- Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980) (execution language not essential to finality)
- Oliveri v. Bateman Group, Inc., 874 So.2d 1290 (Fla. 2d DCA 2004) (finality criteria and appellate review)
- Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272 (Fla. 2d DCA 2006) (summary judgment standard and evidentiary requirements)
- Settecasi v. Bd. of Pub. Instruction of Pinellas Cnty., 156 So.2d 652 (Fla. 2d DCA 1963) (burden on plaintiff when no answer yet filed)
- Howell v. Ed Bebb, Inc., 35 So.3d 167 (Fla. 2d DCA 2010) (summary judgment standard—heavy burden on movant)
- BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (composite rule for entitlement to summary judgment)
- W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So.2d 979 (Fla. 1988) (strict standard for summary judgment)
- Brakefield v. CIT Group/Consumer Finance, Inc., 787 So.2d 115 (Fla. 2d DCA 2001) (summary judgment burden clarified)