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All right, we are ready for you.

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Good morning, Your Honors.

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May it please the Court, my name is David Noel and I represent the appellate universal.

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May I please reserve five minutes for rebuttal?

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Very good.

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And as I said, I'll let you know when you get there.

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Thank you, Judge.

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Your Honors, this appeal is about two different motions.

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It's a motion practice appeal, the first one being a motion to dismiss regarding the pre-suit

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notice statute, and the more interesting issue being a summary judgment motion, two

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motions actually.

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So regarding the first issue, that's raised simply because that precise issue is pending

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in the Florida Supreme Court right now.

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There's a split between all six DCAs.

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This court has ruled on it adversely to our position already.

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So if the court is not inclined to review the issue en banc and recede from its bueas

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case, we would simply request certification of conflict so we can be tagged with the Hughes

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case in the Florida Supreme Court and have it decided when the Supreme Court lays down

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the law for that particular issue.

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Mr. Noel, am I recalling correctly, we don't actually need to certify conflict, we just

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need to cite the cases that are in the pipeline or we can certify.

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I'm not sure it makes a difference.

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It may not make a difference, Your Honor, but I know the court did certify in the bueas

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case itself, so we would simply ask for consistency to do it in this case as well.

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Regarding the summary judgment issue, so that is a denial of due process issue, and what

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happened there is that the trial court granted or entered final judgment, not really sure

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what was granted, but ultimately it was beyond the scope of the plaintiff's motions for summary

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judgment.

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Let me ask you about the scope of summary judgment.

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You characterize the defense, that issue, as an affirmative defense, but leaving aside

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whether it really is an affirmative defense and not just defending on the merits.

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What was the first hearing, what was the first motion directed at in your estimation?

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So the first motion for summary judgment that the plaintiff filed was directed at the cause

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and the scope of the loss?

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But that's not what it said and that's not what the trial court's order said.

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It said it was on liability for breach of contract, whether the contract was breached.

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So Your Honor, that was simply the title of the document, which would not govern the actual

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substance of the document, and it's actually even on the first page in the summary of the

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argument.

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It says, defendant has failed to present any evidence in support of its claim that it made

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a correct determination as to the scope and cost of repairs, and it goes on in the next

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paragraph to talk about the plaintiff expert opines there is damage to plaintiff's property

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caused by a storm event that took place during the subject policy period, and then towards

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the end of that summary, these repairs will cost more than the deductible.

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And that argument is really throughout this motion for . . .

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So what was left over after that summary judgment?

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What was left over after the first summary judgment would have been the lack of prompt

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notice, defense, and then also the amount of damages.

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Right.

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So if you're at the damages stage, the summaries must have been entered on the breach stage,

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right?

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Since these are partial summary judgments, the plaintiffs could . . .

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Well, let's just say typically.

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We are all lawyers here.

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We know what contract, we took contracts, breach, damages.

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So why wouldn't we read the record to conclude that there was summary judgment entered on

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breach of contract in the first order?

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Because in this context with insurance policies, there's the whole burden shifting under an

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all-risk policy, so it's not viewed through the lens of just there's breach and there's

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damages.

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There's the initial burden of proof, and then there's a shifting . . .

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What was the performance obligation that Universal failed to perform if we were to conclude that

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the policy was breached?

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For the policy to be breached, Your Honor, there would have to be a finding that there

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is coverage for the loss.

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There would have to be a finding . . .

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So what did they fail to do?

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In this case, we determined that the loss was below deductible.

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So you didn't pay the claim, right?

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We did open coverage for the interior.

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We denied the roof, but the interior was below deductible, so there wasn't an actual check

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issued, but coverage was accepted for . . .

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Your defense is essentially a conditioned precedent to that performance obligation,

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right?

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It is a conditioned precedent, but it's treated in a lot of the case law . . .

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So in what other scenario, when a party seeks summary judgment on liability for breach of

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contract, do we piecemeal and allow the defendant to assert a defense after the breach of contract

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issue has been adjudicated, if that defense is a conditioned precedent to the very performance

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obligation that underlies the breach of contract?

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Well, Your Honor, in this case, a breach was not found by the trial court, and that's reflected

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in the trial court's order on that first motion for summary judgment.

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In paragraphs 13 and 15, the trial court is simply ruling that there's no question of

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fact as to whether damage occurred, and when the damage occurred, that's paragraph 13,

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and then paragraph 15 ends with scope and causation.

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So that's reflective of the first motion for summary judgment.

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What about paragraph 17?

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Paragraph 17 is really just referring back to the title on the motion for summary judgment.

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And I want to clarify something, because you said that the only reference, or maybe I misheard

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it, that the only reference to . . . in the summary judgment motion as to liability was

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in the title.

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Have you read the motion for summary judgment recently?

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Absolutely, Judge.

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And it says in various places that the party is seeking summary judgment on liability.

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The word liability is mentioned, but the actual substance of the motion throughout

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is seeking a ruling on causation, and then scope of the damage.

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There's nothing in there about the prompt notice issue, and that's important . . .

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So you're saying your position is that your client had no idea that it was exposed to

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an entry of an order, or a potential entry of an order, on liability?

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No, Your Honor.

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My position would be that under the summary judgment rule that was in effect at the time,

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and is still in effect now, the party moving for summary judgment has to identify the claims

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or portions of claims or defenses that they're seeking summary judgment on.

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And that was not done in this motion.

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And that's reflected, actually, Your Honors, in the hearing transcripts, and particularly

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what the judge stated in those transcripts.

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The party . . . in seeking summary judgment, the Bells asked the court to enter summary

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judgment on liability.

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They went through in the motion, and at the hearing, the reasons for that.

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And so, going back to what Judge Atkinson brought up at the beginning of his questioning,

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there's what appears to be an affirmative defense.

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Did your client argue the affirmative defense at all at the motion for summary judgment

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hearing on what I'm going to call liability?

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No, Judge, because it was not within the scope of the motion.

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Our defense counsel at that first summary judgment hearing stated this is just about

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causation.

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He did state that on the record.

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Nobody argued prompt notice at that first summary judgment hearing, because it's not

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reflected in the motion.

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And after the judge entered summary judgment, there was a motion for reconsideration or

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not?

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No.

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There was a second motion for . . .

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So, was it brought to the trial court's attention that the court went too far as to the first

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order any time before the second summary judgment hearing?

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That wouldn't be our position, Your Honor.

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The answer to the question would be no, because that first order didn't go too far.

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And the judge even stated that on the record.

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At the second summary judgment hearing, the parties . . .

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The order states, paragraph 17, the court grants plaintiff's motion for summary judgment

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as to liability for breach of contract.

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What am I missing?

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Correct, Judge, but that's referring back to the title of the motion.

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I think what's . . .

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No, it's not.

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What's really . . .

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I don't read it that way.

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Counsel, I understand what you're arguing, and I appreciate the argument that you feel

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you need to make.

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But you're trying to, I think, pick and choose the wording from the order that suits

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your scenario, and we have to look at the motion, we have to look at the evidence, we

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have to look at what the judge said and what the judge ordered.

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And it seems to me the judge has clearly ruled on liability for breach of contract.

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Maybe . . . I understand your position is the judge was wrong, but I'm having a hard

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time saying the judge didn't reach the issue.

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I understood, Your Honor, and I think we just need to look at the judge's precise words

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at that second summary judgment hearing, because the judge herself said, I did not rule on

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this issue.

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And that's really critical here.

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But a court can also revisit an interlocutory ruling, correct?

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With appropriate notice and due process.

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And that didn't happen.

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There was no additional motion for summary judgment filed.

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But did your client, after either the first hearing or the second hearing, move for reconsideration

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or move for clarification or do anything to clarify that first order?

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No, Your Honor, because there was no reason to.

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The trial court said on the record at the second summary judgment hearing, prompt notice

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is still alive.

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We're going to go to trial on that issue.

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And the plaintiff's counsel even said, thank you, Your Honor, after that statement.

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So everybody was on the same page at the end of that second summary judgment hearing that

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this late notice defense was still alive and we were going to go to trial on it.

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It was only when there was a third hearing . . .

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What if the judge was wrong at that juncture?

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It's all done and dusted, right?

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I mean, it's a cold record.

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It's a hearing.

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There's a transcript of the first hearing.

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There's an order.

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That was essentially a legal determination.

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I read the transcript of the second hearing.

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Counsel for Universal convinced the trial court that the affirmative defense was still

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yet to be adjudicated.

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But that's a legal question.

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Why can't a judge subsequently revisit the issue and say, you know what, actually, no.

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That should have been pled in response to the first summary judgment motion.

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A judge could do that, but they would have to give appropriate notice and due process.

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Why?

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Because it's the equivalent of a summary judgment . . .

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I read the transcript of the second hearing that the counsel for the Universal had plenty

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of argument to make, was not cut off.

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Argument was made that, hey, you know what, the affirmative defense is still out there.

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The previous order was not on breach contract liability.

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What more due process is required?

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At that point . . .

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A separate hearing?

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A separate hearing be noticed.

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Notice of hearing to . . .

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Well, for the judge to say this defense is live and it's going to trial and then make

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a U-turn on that and strike that defense, there would have to be some notice that that

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was even set.

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Why?

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Just due process constraints so that . . .

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Why wasn't there due process afforded at the first hearing and in the second hearing

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when counsel for Universal was permitted, actually permitted successfully to argue to

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the trial court, what is essentially a legal issue, which is a determination of what happened

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at the first hearing and what was memorialized in the first summary judgment order.

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Why?

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What other due process was required?

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The due process would be notice and an opportunity to be heard as to the evidence to support

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that prompt notice defense . . .

201
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Why is there evidence . . .

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. . . so as to go to a jury?

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That's not the question.

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You just jumped rails to a different . . . I'm saying why . . . that's the nub of the whole

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case, whether you should be able to go to trial and in front of defense.

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My question is why couldn't the trial court, after the second hearing, change her mind

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and say, as a matter of law, at the first hearing no affirmative defense was asserted

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to breach of contract liability and a summary judgment order on breach of contract

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was entered and so I've changed my mind and as a matter of law, it's over.

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Why is there notice and opportunity to be heard required for the judge to change his

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or her mind at that point?

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Because that's essentially the judge granting an additional summary judgment . . .

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But that . . . but when . . . no, it's not.

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The judge has decided that it's not an additional, right?

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The judge has decided, no, I'm not . . . I don't need another summary judgment.

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So that's a legal issue on whether an additional summary judgment motion is required, whether

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a trial is required, right?

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Why is the argument at the second hearing on the second summary judgment motion not

219
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adequate for notice and opportunity to be heard on the legal question of what was the

220
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substance and effect of the first order?

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It's not that there was no due process on the effect of the first order because that

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was argued at the second summary judgment hearing, but the judge made a ruling on the

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record and said our defense was live.

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So at that point, it's part of the pleadings, it's going to go to trial.

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For the judge to now say, you can't take it to trial, it's no good, I'm striking it.

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And the judge even said, look, I think there's a question of fact here.

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We need some guidance, I think referring to this court.

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So the judge knew that she was going out on a limb with this, but for there to be a U-turn

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in that manner, to strike a defense that everybody was under the impression and had concluded

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was going to go to trial, without us even having the opportunity to come forward with

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the evidence to support it, that's something that would violate.

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Evidence support on the merits is different than an opportunity to be heard on the legal

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question of what was accomplished by virtue of the first motion and the first hearing

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and the first order.

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And you just conceded, I mean, as you should, admirably, that there was argument made at

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the second hearing regarding the legal question.

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legal effect of those prior proceedings, correct?

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Correct.

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And the judge got it right.

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And opposing counsel said thank you, didn't object to it.

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And all the arguments in the record by opposing counsel at the first summary judgment and

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the second, even the second summary judgment referring back to the first summary judgment

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order, it's all talking about cause of the damage and scope of the damage.

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If we were arguing that we had a wear and tear defense, that wouldn't be viable.

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I mean, that's cause of the damage.

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A prompt notice is a policy condition.

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It deals with, in this case, it's a seven week late notice.

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There's a presumption of prejudice.

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And those are almost always factual issues.

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So let me ask you this.

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How should a plaintiff, how should a plaintiff going forward if we were to reverse and what

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would be the admonition to plaintiffs in the future?

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How should they structure and word their complaints or their motions for summary judgment?

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Mr. Noll, you may answer that.

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You're getting into the five minutes, but I'll keep your five minutes if you just answer

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that question.

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Okay.

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Thank you, Judge.

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All a plaintiff would have to do is just follow the plain language of the rule 1.510, which

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says you have to identify the claims and defenses or portions of thereof that you're seeking

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summary judgment on.

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So in this case, they would have to say, I'm seeking summary judgment on this affirmative

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defense.

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Very good.

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Thank you.

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I'll give you five minutes for rebuttal.

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And as counsel for the appellee approaches, welcome to our friends from across the pond.

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We understand you had a little traffic issue this morning.

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There was a death on one of the bridges, which caused some delays and we're sorry that you

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had to go through that, but we're happy you're here.

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We are on the first case.

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I don't know if you had a chance to read the briefing, but I know Mr. Isom had that and

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I believe circulated that, but welcome.

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And I know you'll be talking to Judge Kuzam and Judge Sleet and some others after we finish.

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So again, we're happy to have you here.

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Mr. Elliott.

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Thank you, Your Honor.

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Good morning.

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I'm pleased to report I am Tom Elliott here with my partner, Amy Ferrier, and along with

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Dean Makris, we represent William and Denise Bell.

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I'm tempted to just say, do you have any questions?

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From the questions you've already asked, I'm not sure I can do any better.

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If you're tempted, is that saying that you have nothing else to argue unless there are

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questions?

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Unless there are questions.

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Thank you, Mr. Elliott.

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Thank you.

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Mr. Knoll, since there was no answer argument, I'm just going to open this up because you've

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had your argument too.

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Any questions from the panel?

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Hearing none.

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Thank you both for the argument and we appreciate it.

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I'm sorry that the barristers didn't get to hear everything.

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They may be staying for a few minutes, but again, thank you and good luck getting back.

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Hopefully traffic will cooperate a little better.

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Thank you, Your Honors.

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You're welcome.

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The next case on the docket, Bank of New York Mellon v. Fernandez.