Third District Court of Appeal
State of Florida
Opinion filed February 9, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1405
Lower Tribunal Nos. 19-30442, 20-4888
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EMG Jockey Club LLC,
Appellant,
vs.
Apeiron Miami, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
Ryan V. Kadyszewski, P.A., and Ryan V. Kadyszewski (Palm Beach
Gardens), for appellant.
Stok Kon + Braverman, and Robert A. Stok and David I. Rosenblatt
(Fort Lauderdale), for appellee.
Before EMAS, SCALES and MILLER, JJ.
PER CURIAM.
Affirmed. See §489.128(2), Fla. Stat. (2018) (providing:
“Notwithstanding any other provision of law to the contrary, if a contract is
rendered unenforceable under this section, no lien or bond claim shall exist
in favor of the unlicensed contractor for any labor, services, or materials
provided under the contract or any amendment thereto.”) (emphasis added.);
Fernandez v. Fla. Nat’l Coll., Inc.,
925 So. 2d 1096, 1101 (Fla. 3d DCA 2006)
(holding that “issues that are not pled in a complaint cannot be considered
by the trial court at a summary judgment hearing”); Am. Title Ins. Co. v.
Carter,
670 So. 2d 1115 (Fla. 5th DCA 1996) (reversing summary judgment
where trial court relied on estoppel theory not raised in the pleadings). See
also Elison v. Goodman,
395 So. 2d 1201, 1202 (Fla. 3d DCA 1981) (holding:
“The judgment is affirmed, notwithstanding the filing of an affidavit in
opposition to the summary judgment in which Mr. Elison directly contradicted
his deposition testimony concerning the date of discovery, so as to bring it
within the limitations period. The trial court properly struck this affidavit under
the now well-settled rule, which had its genesis in Ellison v. Anderson,
74
So. 2d 680 (Fla.1954), that a party is not permitted to alter a previously
asserted position simply to avert summary judgment.”); McKean v. Kloeppel
Hotels, Inc.,
171 So. 2d 552, 556 (Fla. 1st DCA 1965) (“Paralleling those
rules of law which impose upon the party moving for summary judgment the
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above mentioned heavy burdens is the rule that the party opposing the
motion will not be permitted to alter his position as occasion may indicate to
be expedient in order to evade the consequences of his previous pleadings,
admissions, affidavits, depositions or testimony.”)
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