Third District Court of Appeal
State of Florida
Opinion filed April 5, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1048
Lower Tribunal No. 13-30812
________________
Design Neuroscience Centers, P.L., etc.,
Appellant,
vs.
Preston J. Fields, P.A.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
The Business and Family Law Center and Kraig S. Weiss (Weston),
for appellant.
Preston J. Fields, P.A., and Preston J. Fields, Sr. (Palm Beach
Gardens), for appellee.
Before LOGUE, SCALES and LOBREE, JJ.
LOBREE, J.
Design Neuroscience Centers, P.L. (“DNC”) appeals the summary final
judgment entered in favor of Preston J. Fields, P.A., the denial of its motion
to amend its counterclaim, and an order granting Fields’ motion to strike the
jury trial demand contained in the original complaint. Finding no abuse of
discretion, we do not disturb the trial court’s order striking the jury trial
demand and affirm that order without further discussion. However, we
reverse the summary judgment entered in favor of Fields and the denial of
DNC’s motion to amend.
Proceeding on his amended complaint for breach of a lease, Fields
moved for summary judgment against DNC, arguing that he had
uncontrovertibly established a breach of contract. 1 DNC responded,
arguing, among other things, that Fields was not entitled to certain rent
monies under the relevant documents, and pointing out that Fields’ summary
judgment motion failed to address its affirmative defenses and counterclaim
for a declaratory judgment that the lease was void from its inception. On the
Friday before the Monday summary judgment hearing, Fields filed a reply in
support of his summary judgment motion. The reply contained argument
about each of DNC’s affirmative defenses and addressed DNC’s
1
All summary judgment proceedings occurred in 2019–20, before the new
summary judgment rule was effective. See In re Amends. to Fla. R. of Civ.
P. 1.510,
317 So. 3d 72, 77 (Fla. 2021) (stating effective date of new rule is
May 1, 2021).
2
counterclaim, claiming that this court’s prior opinion in Midgard Management,
Inc. v. Park Centre Med-Suites, LLC,
114 So. 3d 302 (Fla. 3d DCA 2013),
was res judicata on the issue of whether the lease documents were void ab
initio. Later that day, DNC moved to strike the reply, protesting that Fields’
reply was improperly filed less than twenty days before the summary
judgment hearing in violation of Florida Rule of Civil Procedure 1.510(c),
where the reply addressed DNC’s affirmative defenses and counterclaim for
the first time. In granting summary judgment, the trial court stated that it
considered Fields’ reply, and found that Fields had conclusively disproven
DNC’s affirmative defenses and that DNC’s counterclaim was barred by the
doctrine of res judicata. DNC moved for reconsideration, arguing that it was
denied due process when the trial court considered Fields’ untimely reply.
“Florida Rule of Civil Procedure 1.510(c) provides that a motion for
summary judgment shall state with particularity the grounds upon which it is
based and the substantial matters of law to be argued.” H.B. Adams
Distribs., Inc. v. Admiral Air of Sarasota Cnty., Inc.,
805 So. 2d 852, 854 (Fla.
2d DCA 2001). The 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.” Fla. Holding 4800, LLC v. Lauderhill Lending,
LLC,
275 So. 3d 183, 187 (Fla. 4th DCA 2019) (quoting City of Cooper City
3
v. Sunshine Wireless Co., Inc.,
654 So. 2d 283, 284 (Fla. 4th DCA 1995)).
Indeed, “[i]t is reversible error to enter summary judgment on a ground not
raised with particularity in the motion for summary judgment.” Ambrogio v.
McGuire,
247 So. 3d 73, 75 (Fla. 2d DCA 2018). To that end, “[r]ule 1.510(c)
requires at least 20 days between service of a motion for summary judgment
and a hearing on the motion.” Casa Inv. Co. v. Nestor,
8 So. 3d 1219, 1221
(Fla. 3d DCA 2009). Failure to comply with rule 1.510(c) deprives the non-
movant “of the ability to both adequately respond and prepare for the
summary judgment hearing.” Id. at 1222. As a result, “it is reversible error
to grant a summary judgment pursuant to a motion which has not been
served within the 20–day notice required by rule 1.510(c).” E & I, Inc. v.
Excavators, Inc.,
697 So. 2d 545, 546 (Fla. 4th DCA 1997); see also Beach
Higher Power Corp. v. Capoche,
763 So. 2d 551 (Fla. 3d DCA 2000).
Here, Fields’ summary judgment motion did not address DNC’s
affirmative defenses or counterclaim, and therefore did not provide notice
that those matters would be argued at the summary judgment hearing set for
two days after Fields filed his reply. Fields’ reply did not merely respond to
arguments DNC made in its response in opposition. It included, for the first
time, Fields’ substantive arguments about DNC’s counterclaim and
affirmative defenses, and cited to evidence not referenced or attached to the
4
motion for summary judgment. In effect, Fields’ reply was a new motion for
summary judgment, for which DNC was entitled to twenty-days’ notice before
a hearing was conducted on the motion. Instead, DNC had only two-days’
notice in contravention of rule 1.150(c), and objected to the reply and the
entry of summary judgment on that basis. 2 Because DNC was deprived of
the requisite notice required under rule 1.510(c), we reverse the trial court’s
grant of summary judgment in favor of Fields. 3
We also reverse the trial court’s denial of DNC’s motion for leave to file
an amended counterclaim. “The trial court’s denial of a party’s motion to
amend a pleading is generally an abuse of discretion, unless (i) the moving
party has abused the privilege to amend, (ii) the opposing party would be
prejudiced by the amendment, or (iii) the amendment would be futile.”
2
See Goncalves v. S. Tower at Point Condo., Inc.,
347 So. 3d 1290, 1290
(Fla. 3d DCA 2022) (“This court has held that any error in failing to give
twenty days’ notice prior to a summary judgment hearing is waived if the
party does not object to insufficient notice either before a summary judgment
hearing, at the summary judgment hearing, or in a motion for rehearing.”
(quoting Azanza v. Priv. Funding Grp., Inc.,
24 So. 3d 586, 587 (Fla. 4th DCA
2009))).
3
Our disposition of DNC’s appeal on this basis disposes of the need to
address the other arguments DNC directs toward the summary judgment.
See Chiu v. Wells Fargo Bank, N.A.,
242 So. 3d 461, 464 n.2 (Fla. 3d DCA
2018) (“Because we are reversing on the basis of a procedural due process
error, we do not address Chiu’s substantive arguments directed toward the
final summary judgment.”).
5
Mishpaja Shajine, Inc. v. Granada Ins. Co.,
319 So. 3d 762, 763 (Fla. 3d
DCA 2021). In the absence of any indication on this record that DNC has
abused its amendment privilege or that any amendment would be futile,
prejudice based on the length of time a case has been pending does not
alone justify denying a motion for leave to amend. See Sorenson v. Bank of
N.Y. Mellon as Tr. for Certificate Holders CWALT, Inc.,
261 So. 3d 660, 663
(Fla. 2d DCA 2018); see also
id. (“Granting leave to amend is particularly
appropriate where the amendment is based on the same conduct,
transaction, or occurrence from which the original claim arose and only
changes a party’s legal theory of the case.”); Morgan v. Bank of N.Y. Mellon,
200 So. 3d 792, 795 (Fla. 1st DCA 2016) (“Whether granting the proposed
amendment would prejudice the opposing party is analyzed primarily in the
context of the opposing party’s ability to prepare for the new allegations or
defenses prior to trial.”). We therefore affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
Affirmed, in part, reversed, in part, and remanded.
SCALES, J., concurs.
LOGUE, J., dissents.
6
