All right, we are ready for you.
Good morning, Your Honors.
May it please the Court, my name is David Noel and I represent the appellate universal.
May I please reserve five minutes for rebuttal?
Very good.
And as I said, I'll let you know when you get there.
Thank you, Judge.
Your Honors, this appeal is about two different motions.
It's a motion practice appeal, the first one being a motion to dismiss regarding the pre-suit
notice statute, and the more interesting issue being a summary judgment motion, two
motions actually.
So regarding the first issue, that's raised simply because that precise issue is pending
in the Florida Supreme Court right now.
There's a split between all six DCAs.
This court has ruled on it adversely to our position already.
So if the court is not inclined to review the issue en banc and recede from its bueas
case, we would simply request certification of conflict so we can be tagged with the Hughes
case in the Florida Supreme Court and have it decided when the Supreme Court lays down
the law for that particular issue.
Mr. Noel, am I recalling correctly, we don't actually need to certify conflict, we just
need to cite the cases that are in the pipeline or we can certify.
I'm not sure it makes a difference.
It may not make a difference, Your Honor, but I know the court did certify in the bueas
case itself, so we would simply ask for consistency to do it in this case as well.
Regarding the summary judgment issue, so that is a denial of due process issue, and what
happened there is that the trial court granted or entered final judgment, not really sure
what was granted, but ultimately it was beyond the scope of the plaintiff's motions for summary
judgment.
Let me ask you about the scope of summary judgment.
You characterize the defense, that issue, as an affirmative defense, but leaving aside
whether it really is an affirmative defense and not just defending on the merits.
What was the first hearing, what was the first motion directed at in your estimation?
So the first motion for summary judgment that the plaintiff filed was directed at the cause
and the scope of the loss?
But that's not what it said and that's not what the trial court's order said.
It said it was on liability for breach of contract, whether the contract was breached.
So Your Honor, that was simply the title of the document, which would not govern the actual
substance of the document, and it's actually even on the first page in the summary of the
argument.
It says, defendant has failed to present any evidence in support of its claim that it made
a correct determination as to the scope and cost of repairs, and it goes on in the next
paragraph to talk about the plaintiff expert opines there is damage to plaintiff's property
caused by a storm event that took place during the subject policy period, and then towards
the end of that summary, these repairs will cost more than the deductible.
And that argument is really throughout this motion for . . .
So what was left over after that summary judgment?
What was left over after the first summary judgment would have been the lack of prompt
notice, defense, and then also the amount of damages.
Right.
So if you're at the damages stage, the summaries must have been entered on the breach stage,
right?
Since these are partial summary judgments, the plaintiffs could . . .
Well, let's just say typically.
We are all lawyers here.
We know what contract, we took contracts, breach, damages.
So why wouldn't we read the record to conclude that there was summary judgment entered on
breach of contract in the first order?
Because in this context with insurance policies, there's the whole burden shifting under an
all-risk policy, so it's not viewed through the lens of just there's breach and there's
damages.
There's the initial burden of proof, and then there's a shifting . . .
What was the performance obligation that Universal failed to perform if we were to conclude that
the policy was breached?
For the policy to be breached, Your Honor, there would have to be a finding that there
is coverage for the loss.
There would have to be a finding . . .
So what did they fail to do?
In this case, we determined that the loss was below deductible.
So you didn't pay the claim, right?
We did open coverage for the interior.
We denied the roof, but the interior was below deductible, so there wasn't an actual check
issued, but coverage was accepted for . . .
Your defense is essentially a conditioned precedent to that performance obligation,
right?
It is a conditioned precedent, but it's treated in a lot of the case law . . .
So in what other scenario, when a party seeks summary judgment on liability for breach of
contract, do we piecemeal and allow the defendant to assert a defense after the breach of contract
issue has been adjudicated, if that defense is a conditioned precedent to the very performance
obligation that underlies the breach of contract?
Well, Your Honor, in this case, a breach was not found by the trial court, and that's reflected
in the trial court's order on that first motion for summary judgment.
In paragraphs 13 and 15, the trial court is simply ruling that there's no question of
fact as to whether damage occurred, and when the damage occurred, that's paragraph 13,
and then paragraph 15 ends with scope and causation.
So that's reflective of the first motion for summary judgment.
What about paragraph 17?
Paragraph 17 is really just referring back to the title on the motion for summary judgment.
And I want to clarify something, because you said that the only reference, or maybe I misheard
it, that the only reference to . . . in the summary judgment motion as to liability was
in the title.
Have you read the motion for summary judgment recently?
Absolutely, Judge.
And it says in various places that the party is seeking summary judgment on liability.
The word liability is mentioned, but the actual substance of the motion throughout
is seeking a ruling on causation, and then scope of the damage.
There's nothing in there about the prompt notice issue, and that's important . . .
So you're saying your position is that your client had no idea that it was exposed to
an entry of an order, or a potential entry of an order, on liability?
No, Your Honor.
My position would be that under the summary judgment rule that was in effect at the time,
and is still in effect now, the party moving for summary judgment has to identify the claims
or portions of claims or defenses that they're seeking summary judgment on.
And that was not done in this motion.
And that's reflected, actually, Your Honors, in the hearing transcripts, and particularly
what the judge stated in those transcripts.
The party . . . in seeking summary judgment, the Bells asked the court to enter summary
judgment on liability.
They went through in the motion, and at the hearing, the reasons for that.
And so, going back to what Judge Atkinson brought up at the beginning of his questioning,
there's what appears to be an affirmative defense.
Did your client argue the affirmative defense at all at the motion for summary judgment
hearing on what I'm going to call liability?
No, Judge, because it was not within the scope of the motion.
Our defense counsel at that first summary judgment hearing stated this is just about
causation.
He did state that on the record.
Nobody argued prompt notice at that first summary judgment hearing, because it's not
reflected in the motion.
And after the judge entered summary judgment, there was a motion for reconsideration or
not?
No.
There was a second motion for . . .
So, was it brought to the trial court's attention that the court went too far as to the first
order any time before the second summary judgment hearing?
That wouldn't be our position, Your Honor.
The answer to the question would be no, because that first order didn't go too far.
And the judge even stated that on the record.
At the second summary judgment hearing, the parties . . .
The order states, paragraph 17, the court grants plaintiff's motion for summary judgment
as to liability for breach of contract.
What am I missing?
Correct, Judge, but that's referring back to the title of the motion.
I think what's . . .
No, it's not.
What's really . . .
I don't read it that way.
Counsel, I understand what you're arguing, and I appreciate the argument that you feel
you need to make.
But you're trying to, I think, pick and choose the wording from the order that suits
your scenario, and we have to look at the motion, we have to look at the evidence, we
have to look at what the judge said and what the judge ordered.
And it seems to me the judge has clearly ruled on liability for breach of contract.
Maybe . . . I understand your position is the judge was wrong, but I'm having a hard
time saying the judge didn't reach the issue.
I understood, Your Honor, and I think we just need to look at the judge's precise words
at that second summary judgment hearing, because the judge herself said, I did not rule on
this issue.
And that's really critical here.
But a court can also revisit an interlocutory ruling, correct?
With appropriate notice and due process.
And that didn't happen.
There was no additional motion for summary judgment filed.
But did your client, after either the first hearing or the second hearing, move for reconsideration
or move for clarification or do anything to clarify that first order?
No, Your Honor, because there was no reason to.
The trial court said on the record at the second summary judgment hearing, prompt notice
is still alive.
We're going to go to trial on that issue.
And the plaintiff's counsel even said, thank you, Your Honor, after that statement.
So everybody was on the same page at the end of that second summary judgment hearing that
this late notice defense was still alive and we were going to go to trial on it.
It was only when there was a third hearing . . .
What if the judge was wrong at that juncture?
It's all done and dusted, right?
I mean, it's a cold record.
It's a hearing.
There's a transcript of the first hearing.
There's an order.
That was essentially a legal determination.
I read the transcript of the second hearing.
Counsel for Universal convinced the trial court that the affirmative defense was still
yet to be adjudicated.
But that's a legal question.
Why can't a judge subsequently revisit the issue and say, you know what, actually, no.
That should have been pled in response to the first summary judgment motion.
A judge could do that, but they would have to give appropriate notice and due process.
Why?
Because it's the equivalent of a summary judgment . . .
I read the transcript of the second hearing that the counsel for the Universal had plenty
of argument to make, was not cut off.
Argument was made that, hey, you know what, the affirmative defense is still out there.
The previous order was not on breach contract liability.
What more due process is required?
At that point . . .
A separate hearing?
A separate hearing be noticed.
Notice of hearing to . . .
Well, for the judge to say this defense is live and it's going to trial and then make
a U-turn on that and strike that defense, there would have to be some notice that that
was even set.
Why?
Just due process constraints so that . . .
Why wasn't there due process afforded at the first hearing and in the second hearing
when counsel for Universal was permitted, actually permitted successfully to argue to
the trial court, what is essentially a legal issue, which is a determination of what happened
at the first hearing and what was memorialized in the first summary judgment order.
Why?
What other due process was required?
The due process would be notice and an opportunity to be heard as to the evidence to support
that prompt notice defense . . .
Why is there evidence . . .
. . . so as to go to a jury?
That's not the question.
You just jumped rails to a different . . . I'm saying why . . . that's the nub of the whole
case, whether you should be able to go to trial and in front of defense.
My question is why couldn't the trial court, after the second hearing, change her mind
and say, as a matter of law, at the first hearing no affirmative defense was asserted
to breach of contract liability and a summary judgment order on breach of contract
was entered and so I've changed my mind and as a matter of law, it's over.
Why is there notice and opportunity to be heard required for the judge to change his
or her mind at that point?
Because that's essentially the judge granting an additional summary judgment . . .
But that . . . but when . . . no, it's not.
The judge has decided that it's not an additional, right?
The judge has decided, no, I'm not . . . I don't need another summary judgment.
So that's a legal issue on whether an additional summary judgment motion is required, whether
a trial is required, right?
Why is the argument at the second hearing on the second summary judgment motion not
adequate for notice and opportunity to be heard on the legal question of what was the
substance and effect of the first order?
It's not that there was no due process on the effect of the first order because that
was argued at the second summary judgment hearing, but the judge made a ruling on the
record and said our defense was live.
So at that point, it's part of the pleadings, it's going to go to trial.
For the judge to now say, you can't take it to trial, it's no good, I'm striking it.
And the judge even said, look, I think there's a question of fact here.
We need some guidance, I think referring to this court.
So the judge knew that she was going out on a limb with this, but for there to be a U-turn
in that manner, to strike a defense that everybody was under the impression and had concluded
was going to go to trial, without us even having the opportunity to come forward with
the evidence to support it, that's something that would violate.
Evidence support on the merits is different than an opportunity to be heard on the legal
question of what was accomplished by virtue of the first motion and the first hearing
and the first order.
And you just conceded, I mean, as you should, admirably, that there was argument made at
the second hearing regarding the legal question.
legal effect of those prior proceedings, correct?
Correct.
And the judge got it right.
And opposing counsel said thank you, didn't object to it.
And all the arguments in the record by opposing counsel at the first summary judgment and
the second, even the second summary judgment referring back to the first summary judgment
order, it's all talking about cause of the damage and scope of the damage.
If we were arguing that we had a wear and tear defense, that wouldn't be viable.
I mean, that's cause of the damage.
A prompt notice is a policy condition.
It deals with, in this case, it's a seven week late notice.
There's a presumption of prejudice.
And those are almost always factual issues.
So let me ask you this.
How should a plaintiff, how should a plaintiff going forward if we were to reverse and what
would be the admonition to plaintiffs in the future?
How should they structure and word their complaints or their motions for summary judgment?
Mr. Noll, you may answer that.
You're getting into the five minutes, but I'll keep your five minutes if you just answer
that question.
Okay.
Thank you, Judge.
All a plaintiff would have to do is just follow the plain language of the rule 1.510, which
says you have to identify the claims and defenses or portions of thereof that you're seeking
summary judgment on.
So in this case, they would have to say, I'm seeking summary judgment on this affirmative
defense.
Very good.
Thank you.
I'll give you five minutes for rebuttal.
And as counsel for the appellee approaches, welcome to our friends from across the pond.
We understand you had a little traffic issue this morning.
There was a death on one of the bridges, which caused some delays and we're sorry that you
had to go through that, but we're happy you're here.
We are on the first case.
I don't know if you had a chance to read the briefing, but I know Mr. Isom had that and
I believe circulated that, but welcome.
And I know you'll be talking to Judge Kuzam and Judge Sleet and some others after we finish.
So again, we're happy to have you here.
Mr. Elliott.
Thank you, Your Honor.
Good morning.
I'm pleased to report I am Tom Elliott here with my partner, Amy Ferrier, and along with
Dean Makris, we represent William and Denise Bell.
I'm tempted to just say, do you have any questions?
From the questions you've already asked, I'm not sure I can do any better.
If you're tempted, is that saying that you have nothing else to argue unless there are
questions?
Unless there are questions.
Thank you, Mr. Elliott.
Thank you.
Mr. Knoll, since there was no answer argument, I'm just going to open this up because you've
had your argument too.
Any questions from the panel?
Hearing none.
Thank you both for the argument and we appreciate it.
I'm sorry that the barristers didn't get to hear everything.
They may be staying for a few minutes, but again, thank you and good luck getting back.
Hopefully traffic will cooperate a little better.
Thank you, Your Honors.
You're welcome.
The next case on the docket, Bank of New York Mellon v. Fernandez.