Third District Court of Appeal
State of Florida
Opinion filed December 22, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-167
Lower Tribunal Nos. 18-11308 CC & 20-161 AP
________________
Rainbow Restoration, LLC,
Appellant,
vs.
Citizens Property Insurance Corporation,
Appellee.
An Appeal from the County Court for Miami-Dade County, Lody Jean,
Judge.
Chad Barr Law, and Chad A. Barr (Altamonte Springs), for appellant.
Vernis & Bowling of Broward, P.A., and Carlton Bober and Bernadette
Guerra (Hollywood), for appellee.
Before SCALES, LINDSEY and MILLER, JJ.
SCALES, J.
Appellant Rainbow Restoration, Inc. (“Rainbow”) appeals a final
summary judgment in favor of appellee Citizens Property Insurance
Corporation (“Citizens”). Because we determine there is a disputed issue of
material fact, we reverse.
In August 2013, Rainbow provided water mitigation services to
Citizens’s insured, Elizabeth Aulicino, after her residence suffered water
damage. After Citizens did not pay Rainbow’s invoice, Rainbow, in May
2018, filed a Complaint for breach of contract against Citizens. Citizens
answered by denying that it had ever received an invoice or any supporting
documentation from Rainbow.
At his deposition, Rainbow’s owner, Enrique Grajales, testified that,
although he could not specifically recall when and how he was in contact
with Citizens, he believed, based on his personal notes for the job, that he
mailed the invoice to Citizens on August 14, 2013. He testified that he
recalled his notes reflecting “Out by August 14th.” He testified that it was his
general practice, in 2013, to submit documentation to insurers by U.S. Mail.
Over the course of the deposition, Grajales repeated the August 14, 2013
mailing date. Grajales, however, neither supplied for the record below any
proof of mailing nor the notes he referred to in his deposition.
2
In May 2020, Citizens moved for summary judgment, asserting that
Rainbow’s lawsuit was its first notice of Rainbow’s water mitigation services;
thus, Citizens argued that Rainbow’s lawsuit was premature as no breach of
contract had occurred. Citizens supplemented its summary judgment motion
with an affidavit by a corporate representative. Rainbow filed an affidavit by
Grajales in opposition to Citizens’s motion, in which Grajales amplified his
deposition testimony by specifically claiming to have sent an invoice, an
assignment of insurance benefits from Aulicino, and a certificate of
completion by U.S. Mail on or about August 14, 2013.
At the August 5, 2020 summary judgment hearing on Citizens’s
motion, the trial court found that Grajales’s deposition testimony mainly
addressed Grajales’s general practices in submitting documentation to
insurance companies and, therefore, his summary judgment affidavit
substantially differed from his deposition testimony. In granting summary
judgment to Citizens, the trial court applied the principle “that a litigant, when
confronted with an adverse motion for summary judgment, may not
contradict or disavow prior sworn testimony with contradictory affidavit
testimony.” DeShazior v. Safepoint Ins. Co.,
305 So. 3d 752, 755 (Fla. 3d
DCA 2020).
3
Rainbow argues – and we agree – that the trial court erred in granting
summary judgment because it apparently misunderstood Grajales’s
testimony. While Grajales’s deposition testimony is not a model of clarity, he
clearly testified that he mailed Rainbow’s invoice to Citizens on August 14,
2013. Because Grajales’s affidavit and deposition testimony do not appear
to contradict each other, summary judgment is not warranted. See Siguenza
v. Citizens Prop. Ins. Corp.,
121 So. 3d 1125, 1126 (Fla. 3d DCA 2013).
We therefore reverse the summary judgment and remand this case to
the lower court because there is a disputed issue of material fact as to
whether Grajales mailed the necessary documentation to Citizens prior to
filing suit. 1
Reversed and remanded.
1
Because the trial court granted summary judgment prior to the amendment
to Florida Civil Procedure Rule 1.510, effective May 1, 2021, our
determination in this appeal is based on Florida’s former summary judgment
standard. See In Re: Amendments to Florida Rule of Civil Procedure 1.510,
317 So. 3d 72 (Fla. 2021).
4
