Nair Alice Silveira De Souza Britto Ammirabile v. Admiral's Port Condominium Association, Inc.
3D2024-0470
Fla. Dist. Ct. App.May 21, 2025Background
- Nair Alice De Souza Britto Ammirabile and Jose Marcos Ammirabile Filho (the "Ammirabiles") appealed a final summary judgment entered in favor of Admiral’s Port Condominium Association, Inc. and Airstron LLC (the "Maintenance Company").
- The Ammirabiles alleged negligence against both the Condo Association and Maintenance Company, relating to a duty to maintain.
- The Condo Association asserted an affirmative defense, pleading that the Maintenance Company could be liable (a "Fabre defense") and sought to apportion fault.
- The trial court granted summary judgment to both the Condo Association and the Maintenance Company.
- On appeal, the Ammirabiles argued the assertion of a Fabre defense by the Condo Association should suffice to establish liability without need for additional evidence, and that the Maintenance Company should not have been granted summary judgment without independently seeking it.
- The DCA affirmed the trial court, holding that mere pleadings are not evidence and the Ammirabiles provided no competent evidence of negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Fabre Defense as Evidence | Affirmative defense alleging possible negligence by others is enough to survive summary judgment | Pleadings aren't evidence; actual evidence of negligence by a third party is required to apportion fault | Asserting Fabre defense is not evidence; summary judgment affirmed due to lack of evidence |
| Liability for Non-Delegable Duty | Duty to maintain is non-delegable; liability imposed on Condo Association | Liability still requires competent evidence of a breach, even for non-delegable duties | No evidence of breach; no liability imposed |
| Maintenance Company's Right to Summary Judgment without Separate Motion | Maintenance Company did not independently move for summary judgment | Maintenance Company properly joined Association’s summary judgment motion at hearing; plaintiff did not object | Waiver by failure to object; summary judgment proper |
| Waiver of Procedural Rules on Summary Judgment | Plaintiffs did not waive timing requirements of summary judgment rules | Plaintiffs failed to object at hearing, thus waived procedural rules | Waiver found; summary judgment procedure upheld |
Key Cases Cited
- S. Bell Tel. & Tel. Co. v. Fla. Dep’t of Transp., 668 So. 2d 1039 (Fla. 3d DCA 1996) (Defendant seeking to add non-party for apportionment of fault must present sufficient evidence of that party's negligence)
- Turtle Lake Assocs., Ltd. v. Third Fin. Servs., Inc., 518 So. 2d 959 (Fla. 1st DCA 1988) (Pleadings do not constitute evidence)
- Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So. 2d 676 (Fla. 3d DCA 1980) (Non-delegable duty still requires evidence of breach for liability)
- Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970) (Timing requirements for summary judgment motions may be waived by failure to object)
- Bernard Marko & Assocs., Inc. v. Steele, 230 So. 2d 42 (Fla. 3d DCA 1970) (Waiver of procedural irregularities when no timely objection to joinder in summary judgment motion)