SALVATORE AMBROGIO, an individual, and ROSEMARIE AMBROGIO, an individual, Appellants,
MARCELINE MCGUIRE, an individual, and THE TRUST DATED OCT. 25, 1991, Marceline McGuire, Trustee, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Keith Spoto, Judge.
P. Kelly and Connor S. Kelly of KellyLaw, P.A., Orlando, for
Marceline McGuire, pro se.
and Rosemarie Ambrogio sued Marceline McGuire and "The
Trust Dated October 25, 1991, " a trust in which Ms.
McGuire serves as trustee, over Ms. McGuire's failure to
pay on a $33, 500 promissory note. After a hearing on Ms.
McGuire's motions for summary judgment, the trial court
granted final summary judgment in her favor, holding that the
statute of limitations had run on all of the Ambrogios'
claims. On appeal, the Ambrogios argue that Ms. McGuire
neglected to raise statute of limitations as a ground for
summary judgment with particularity in any of her written
motions and thus failed to comply with Florida Rule of Civil
Procedure 1.510(c). We agree and reverse the final summary
and Procedural Background
Ambrogios contracted to sell their Polk County home to Ms.
McGuire in 2007. Before closing on the deal, the parties
signed an unartful, handwritten promissory note, in which Ms.
McGuire agreed to pay $33, 500 to the Ambrogios once she sold
her Lodgewood Drive home. Ms. McGuire took title and
possession of the Ambrogios' home but, for reasons not
entirely clear from the record, did not sell her Lodgewood
Drive home. Over the next several years, the Ambrogios were
unsuccessful in their attempts to receive payment from Ms.
McGuire. As such, in 2015, they sued Ms. McGuire in a
sixteen-count complaint alleging, among other claims, fraud,
breach of contract, and unjust enrichment. Ms. McGuire
answered the complaint, asserting five affirmative defenses
including a statute of limitations defense as follows:
"This action is barred by the statute of limitations as
evidenced by the alleged promissory note dated February 28,
McGuire subsequently filed a series of motions seeking
summary judgment, some with attachments and others with no
attachments. The common thread of these motions is that they
all consist of one-sentence, conclusory statements asserting
that there were no issues of material fact and that she was
thus entitled to summary judgment. For example, in her motion
titled "Amended Motion for Summary Judgment" she
stated that she was entitled to summary judgment because the
"pleadings, the Deposition of Salvatore Ambrogio
previously filed, and the affidavit of Marceline McGuire,
marked as Exhibit A, show that there is no genuine issue of
any material fact and the defendants is [sic] entitled to
judgment as a matter of law."
trial court subsequently held a hearing on Ms. McGuire's
motions for summary judgment. During that hearing, Ms.
McGuire's counsel asserted that the trial court must
grant summary judgment to her because the statute of
limitations as to all of the Ambrogios' claims had run.
The Ambrogios' counsel responded that Ms. McGuire
neglected to raise statute of limitations as a ground for
summary judgment in any of her motions for summary judgment.
The trial court asked Ms. McGuire's counsel to identify
where the statute of limitations argument had been asserted
in Ms. McGuire's motions for summary judgment. Ms.
McGuire's counsel responded: "Only in my first
affirmative defense that's part of my answer.
It's part of the pleadings." (Emphasis
added.) The Ambrogios' counsel argued to the trial court
that Ms. McGuire's motions for summary judgment did not
comply with Florida Rule of Civil Procedure 1.510(c) because
none of them "state[d] with particularity the grounds on
which [they were] based and the substantial matters of law to
be argued." The trial court rejected this argument,
ruling that Ms. McGuire's motions for summary judgment
complied with rule 1.510(c). The trial court thus granted
summary judgment to Ms. McGuire exclusively on the statute of
limitations ground, which was fleshed out in detail at the
appeal, the Ambrogios argue that the trial court erred in
granting Ms. McGuire summary judgment on the statute of
limitations ground because Ms. McGuire had not raised statute
of limitations with particularity in any of her written
motions seeking summary judgment.
reversible error to enter summary judgment on a ground not
raised with particularity in the motion for summary judgment.
Williams v. Bank of Am. Corp., 927 So.2d 1091, 1093
(Fla. 4th DCA 2006) (citing, inter alia,
Cheshire v. Magnacard, Inc., 510 So.2d 1231, 1234
(Fla. 2d DCA 1987)). Florida Rule of Civil Procedure 1.510(c)
mandates that a motion for summary judgment "must state
with particularity the grounds on which it is based and the
substantial matters of law to be argued and must specifically
identify any affidavits, answers to interrogatories,
admissions, depositions, and other materials as would be
admissible in evidence ('summary judgment evidence')
on which the movant relies." A purpose of this rule
"is to eliminate surprise and to provide parties a full
and fair opportunity to argue the issues." H.B.
Adams Distribs., Inc. v. Admiral Air of Sarasota Cty.,
Inc., 805 So.2d 852, 854 (Fla. 2d DCA 2001) (citing
Lee v. Treasure Island Marina, Inc., 620 So.2d 1295,
1297 (Fla. 1st DCA 1993)); see also Cheshire, 510
So.2d at 1234 ("The purpose of the rule is to put the
opposing party on notice as to the grounds which will be
asserted against him." (quoting Burns v.
Consol. Am. Ins. Co., 359 So.2d 1203, 1206 (Fla. 3d
DCA 1978))); City of Cooper City v. Sunshine Wireless
Co., 654 So.2d 283, 284 (Fla. 4th DCA 1995) ("This
rule is designed to prevent 'ambush' by allowing the
nonmoving party to be prepared for the issues that will be
argued at the summary judgment hearing." (quoting
Swift Indep. Packing Co. v. Basic Food Int'l,
Inc., 461 So.2d 1017, 1018 (Fla. 4th DCA 1984))).
where a party's motion for summary judgment states
"only in general terms that no material issues of fact
or law existed and that [the movant] was entitled to the
relief requested[, ] [s]uch a motion is insufficient to place
the nonmoving party on notice of the issues of fact or law
which will be argued at the hearing." Locke v. State
Farm Fire & Cas. Co., 509 So.2d 1375, 1377 (Fla. 1st
DCA 1987); see also Worley v. Sheffield, 538 So.2d
91, 92 (Fla. 1st DCA 1989) (holding that a motion for summary
judgment was insufficient where it conclusively stated that
there "is no genuine issue as to any material fact and
that the moving party is entitled to a Judgment as a matter
of law"). Under such circumstances, reversal and ...