U.S.BANK N.A., AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE J.P. MORGAN ALTERNATIVE LOAN TRUST 2007-S1 MORTGAGE PASS-THROUGH CERTIFICATES Appellant,
EARL HOLBROOK, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Jack Day, Judge.
Allison Morat of Pearson Bitman LLP, Maitland, for Appellant.
Govan of Govan Law Group, P.A., Clearwater, for Appellee.
residential mortgage foreclosure case, U.S. Bank, N.A., as
Trustee, on behalf of the holders of the J.P. Morgan
Alternative Loan Trust 2007-S1 Mortgage Pass-Through
Certificates (U.S. Bank), appeals the circuit court's
final summary judgment entered against it on the bank's
complaint to reform and foreclose a mortgage on Earl
Holbrook's property. We review a ruling on summary judgment
de novo. Treasure Coast Marina, LC v. City of Fort
Pierce, 219 So.3d 793, 802 n.13 (Fla. 2017); ALS
Maxim I LLC v. Katsenko, 218 So.3d 472, 473 (Fla. 2d DCA
2017). As we observed in Katsenko:
Summary judgment is appropriate "only if there is no
genuine issue of material fact and if the moving party is
entitled to judgment as a matter of law." Reed v.
Schutz Litig. LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013)
(quoting MarElia v. Yanchuck, Berman, Wadley &
Zervos, P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007)). The
movant "has the burden to establish irrefutably
that the nonmoving party cannot prevail were a trial
to be held." Land Dev. Servs., Inc. v. Gulf View
Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011).
218 So.3d at 473.
time the circuit court entered summary judgment, Mr. Holbrook
had not filed an answer, nor had he responded to any of U.S.
Bank's discovery requests. Indeed, Mr. Holbrook had
adamantly refused to sit for his deposition, necessitating
the filing of a contempt motion against him, which, at the
time of the summary judgment hearing, was still pending. On
this record, then, it is clear to us that the circuit
court's entry of summary judgment was premature. See
Brandauer v. Publix Super Mkts., Inc., 657 So.2d 932,
933 (Fla. 2d DCA 1995) ("As a general rule, a court
should not enter summary judgment when the opposing party has
not completed discovery."); Colby v.
Ellis, 562 So.2d 356, 357 (Fla. 2d DCA 1990)
("As a general rule, it is premature to grant a motion
for summary judgment where the opposing party has not
completed its discovery and there are discovery motions
pending before the court."); Settecasi v. Bd. of
Pub. Instruction of Pinellas Cty., 156 So.2d 652, 654
(Fla. 2d DCA 1963) ("Although a plaintiff may move for
summary judgment before the defendant has answered, the
motion should not be granted unless it is clear that an issue
of material fact cannot be presented."). Furthermore,
the circuit court's summary judgment relied upon evidence
concerning a prior civil proceeding and adjudication that Mr.
Holbrook submitted for the first time at the summary judgment
hearing. The circuit court's consideration of that
evidence was also error. See Fla. R. Civ. P.
1.510(c) ("The movant must serve the motion at least 20
days before the time fixed for the hearing, and must also
serve at that time a copy of any summary judgment evidence on
which the movant relies that has not already been filed with
the court."); Verizzo v. Bank of New York, 28
So.3d 976, 977-78 (Fla. 2d DCA 2010) (reversing summary
judgment of foreclosure where plaintiff failed to serve
defendant with summary judgment evidence until eleven days
before the hearing); Mack v. Commercial Indus. Park,
Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989) (holding
that moving party's summary judgment exhibits that were
not served upon the non-moving party prior to the hearing
could not be considered). Accordingly, we must reverse the
circuit court's summary judgment.
CASANUEVA and BADALAMENTI, JJ, Concur
The mortgage contains a parcel
identification number and street address but not a formal