CUSTOM DESIGN EXP, INC. v. SYNERGY RENTS, L L C

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
CUSTOM DESIGN EXPO, INC., a Florida corporation, and
YOGMATIE SINGH,
Appellants,
v.
SYNERGY RENTS, INC., a Florida limited liability company, and
F.I.R.E. RESOURCES, INC., a Florida corporation,
Appellees.
No. 2D20-1316
September 10, 2021
Appeal from the Circuit Court for Polk County; John Radabaugh,
Judge.
Marc D. Peltzman of Law Office of Marc D. Peltzman, P.A., Orlando,
for Appellants.
Brian A. Leung, Victor W. Holcomb, and Steven R. DiOssi of
Holcomb & Leung, P.A., Tampa, for Appellee Synergy Rents, Inc.
No appearance for Appellee F.I.R.E. Resources, Inc.
SLEET, Judge.
Custom Design Expo, Inc., and its principal Yogmatie Singh
challenge the trial court's final summary judgment entered against
them and in favor of Synergy Rents, Inc., in Synergy's action for
breach of contract and open account filed against them.1 Because
the affidavit in opposition to Synergy's summary judgment motion
was insufficient to establish a genuine issue of material fact, we
affirm.
Custom Design is a contractor that was hired by F.I.R.E.
Resources, Inc., to clear, grade, and prepare undeveloped lots for
vertical development. Custom Design contracted with Synergy to
rent construction equipment for that job. In its complaint below,
Synergy alleged that it had a contract with Custom Design for the
rental of construction equipment on open account, that Custom
Design failed to pay all amounts due and owing on the contract,
that Singh signed a personal guaranty to be personally liable for
amounts due pursuant to the contract, and that $81,875.43 due on
the contract remained unpaid.
1Appellee F.I.R.E. Resources, Inc., was named as a defendant
below in a separate count for construction lien but makes no
appearance in this appeal.
2
Custom Design and Singh filed an answer to the complaint,
and Synergy subsequently moved for summary judgment on only
the counts brought against them.
In support of the motion, Synergy filed with the trial court the
affidavit of its credit manager, Lynn Idleman, in which she averred
that Custom Design had executed a written application for credit
with Synergy for the purpose of renting service equipment on open
account and that the application contained a personal guaranty on
the debt signed by Singh. A copy of the application, including the
personal guaranty with Singh's signature, was attached to the
affidavit. The credit application also included language that
indicated that the application was a contract and that in exchange
for the extension of credit, the applicant agreed to make payment
pursuant to the terms of the agreement. Idleman stated in the
affidavit that Custom Design rented equipment pursuant to the
credit application contract, "fail[ed] and/or refus[ed] to pay for the
rental equipment" in full, and owed Synergy the unpaid amount of
$81,875.43 plus prejudgment interest. Copies of twenty-two
invoices supporting that amount were also attached to the affidavit,
3
and Idleman averred that they were "true and correct copies of the
outstanding invoices."
The only evidence filed in opposition to the summary judgment
motion was the affidavit of F.I.R.E. president Shane Merali.2 In that
affidavit, Merali stated the following:
5. F.I.R.E. RESOURCES, INC. takes issue with 3 invoices
presented in Plaintiff's Motion for Summary Judgment
2 In its answer brief before this court, Synergy points out that
"[t]he affidavit was filed not by Custom Design and Singh but by
Shane Merali, who is not a party to the case and is the President of
the property owner, F.I.R.E." We first note that Synergy is incorrect
in its contention that the affidavit was filed with the court by Merali
individually. The notice of filing attached to Merali's affidavit
stated, "Defendant, F.I.R.E. Resources, Inc., by and through
undersigned counsel hereby files the attached Affidavit of Shane
Merali in connection with the Motion [for] Summary Judgment
currently scheduled for hearing." As such, the affidavit was filed on
behalf of F.I.R.E., which—contrary to Synergy's assertion—was a
party defendant to the action below as count one of Synergy's
amended complaint was a count for construction lien against
defendant F.I.R.E. as the owner of the property.
Furthermore, F.I.R.E. had standing to oppose the motion
seeking summary judgment against its codefendants because the
construction lien count against F.I.R.E was based on the breach of
contract and open account allegations against Custom Design and
Singh. Cf. Crowell v. Kaufmann, 845 So. 2d 325, 327 (Fla. 2d DCA
2003) ("[T]he summary judgment in favor of [Dr. Crowell's
codefendant] Dr. Kaufmann exonerates [Dr. Kaufmann] from fault.
Because the trial court determined as a matter of law that Dr.
Kaufmann was not at fault, Dr. Crowell would not have been
entitled to place him on the verdict form [as a defendant pursuant
to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993)]. Accordingly, Dr.
Crowell had standing to oppose Dr. Kaufmann's motion for
summary judgment . . . ." (citations omitted)).
4
and supporting affidavit. The first disputed invoice is
#5008-0010. This invoice is in the amount of $4,931.26,
for a 2 week rental period. The rental period, however,
for this equipment was supposed to be 1 week. This
invoice therefore represents an overcharge of at least
$2,465.00, plus the interest accrued on the overcharge.
6. The second disputed invoice is #5111-0006. This
invoice is in the amount of $3,116.25, for a 2 week rental
period. The rental period, however, for this equipment
was supposed to be 1 week. This invoice therefore
represents an overcharge of at least $1,558.12, plus the
interest accrued on the overcharge.
7. The third disputed invoice is #41119-002. This
invoice, for a 4 week rental, in the amount of $1,900.00,
does not accurately reflect the amount of time for which
the equipment was on-site at Tuscany Preserve.
Following a hearing, the trial court entered summary
judgment in favor of Synergy and directed Custom Design and
Singh to pay $81,875.43 plus interest and court costs.
On appeal, Custom Design and Singh argue that this was
error because Merali's affidavit established a genuine issue of
material fact as to the amount due. Synergy, however, maintains
that the affidavit only "asserted mere conclusions without any
basis" and thus was insufficient to establish a genuine issue of
material fact to preclude summary judgment. We agree with
Synergy that Merali's affidavit did not establish a genuine issue of
5
material fact and conclude that Custom Design and Singh have not
met their burden on appeal of proving reversible error.
Summary judgment "must be rendered immediately if the
pleadings and summary judgment evidence on file show 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." Fla. R. Civ. P.
1.510(c) (2020).3 "A movant for summary judgment has the initial
burden of demonstrating the nonexistence of any genuine issue of
material fact. But once he tenders competent evidence to support
his motion, the opposing party must come forward with
counterevidence sufficient to reveal a genuine issue." Rooker v.
Ford Motor Co., 100 So. 3d 1229, 1231 (Fla. 2d DCA 2012) (quoting
Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979)). Summary
judgment evidence includes "any affidavits, answers to
interrogatories, admissions, depositions, and other material as
would be admissible in evidence." Fla. R. Civ. P. 1.510(b).
"Supporting and opposing affidavits must be made on personal
3 Rule 1.510 was amended effective May 1, 2021. The prior
version of the rule is applicable here because it was in effect when
Merali's affidavit was made and when the trial court ruled on
Synergy's summary judgment motion. But our disposition of this
case would be the same under either version of the rule.
6
knowledge, must set forth such facts as would be admissible in
evidence, and must show affirmatively that the affiant is competent
to testify to the matters stated therein." Fla. R. Civ. P. 1.510(e).
Here, Synergy tendered competent admissible evidence to
support its motion. Idleman's affidavit along with the attached
credit application contract and invoices established that the parties
had a contract for the rental of equipment on open account, that
Custom Design breached that contract by failing to pay $81,875.43
due on the account, and that Singh had signed a personal guaranty
on the account.4
As such, the burden shifted to the nonmovants to provide
counterevidence establishing a genuine issue of material fact. See
Rooker, 100 So. 3d at 1231. The only evidence presented in
opposition of summary judgment was Merali's affidavit. In that
affidavit, Merali averred that he was the corporate president for
F.I.R.E., that he was "the individual with F.I.R.E. . . . with the most
knowledge of equipment rental at issue," that he "was on-site
managing and supervising development activities at Tuscany
4On appeal, Custom Design and Singh do not challenge the
admissibility of any of Synergy's summary judgment evidence.
7
Preserve multiple days each week during the rental period," and
that the equipment rented "was used, exclusively during the lease
period, for construction for site improvements at Tuscany Preserve."
Merali also challenged the correctness of three of the twenty-
two invoices attached to Idleman's affidavit. As to two of the
invoices, Merali asserted that they were for two-week rental periods
but that "[t]he rental period . . . was supposed to be 1 week." It is
undisputed, however, that neither Merali nor F.I.R.E. was a party to
the credit application contract. Additionally, Merali does not assert
that he had any direct relationship or entered into any agreements
with Synergy. The written contract does not indicate the rental
periods, but the invoices indicate that the equipment was all
ordered by Arnold Singh, and nothing in Merali's affidavit
contradicts that fact. As such, Merali did not have personal
knowledge of any agreements between Synergy and Custom Design
and Singh, and any information he could offer regarding those
agreements—including how long the rental periods were "supposed
to be"—would necessarily have to be inadmissible hearsay.
But hearsay cannot form the basis in an affidavit for
establishing a genuine issue of material fact that would preclude
8
summary judgment. See Fla. R. Civ. P. 1.510(e) ("Supporting and
opposing affidavits must be made on personal knowledge [and]
must set forth such facts as would be admissible in evidence.");
Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA 2016) ("The
personal knowledge requirement found in rule 1.510(e) is meant to
prevent the trial court from relying on hearsay when deciding a
motion for summary judgment."); Fla. Dep't of Fin. Servs. v.
Associated Indus. Ins. Co., 868 So. 2d 600, 602 (Fla. 1st DCA 2004)
("The purpose of the personal knowledge requirement is to prevent
the trial court from relying on hearsay when ruling on a motion for
summary judgment . . . and to ensure that there is an admissible
evidentiary basis for the case rather than mere supposition or
belief." (quoting Pawlik v. Barnett Bank of Columbia Cnty., 528 So.
2d 965, 966 (Fla. 1st DCA 1988))). " 'An affidavit . . . may not be
based on factual conclusions or conclusions of law.' 'A factual
predicate for the testimony is required, just as it would be required
at trial.' " Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So. 3d 560,
563-64 (Fla. 2d DCA 2020) (citations omitted) (first quoting Fla.
Dep't of Fin. Servs., 868 So. 2d at 602, and then quoting Johns, 186
So. 3d at 622).
9
As to the third invoice, in his affidavit, Merali asserts that
invoice number 41119-002, "for a 4 week rental, in the amount of
$1,900.00, does not accurately reflect the amount of time for which
the equipment was on site at Tuscany Preserve." Again, we
conclude that this statement by Merali is insufficient to create a
genuine issue of material fact.
The invoice in question was one of four invoices attached to
Idleman's affidavit that deal with the same piece of equipment, a
forklift with the serial number 0160085723. All four invoices
indicate that the date the forklift was rented out was May 3, 2018.
The first invoice, number 41119-001, charges for the period from
May 3 to May 31, 2018. The second invoice, the one that Merali
challenges in his affidavit, charges for the period from May 31 to
June 28, 2018. The third invoice, number 41119-003, charges for
the period from June 28 to July 26, 2018, and invoice 41119-004
charges for the period from July 26 to August 1, 2018, and
indicates that the forklift was returned to Synergy on August 1,
2018. Thus, the invoices, along with Idleman's affidavit, establish
the material fact that Custom Design had possession of Synergy's
10
forklift from May 3 until August 1, 2018, and owed payment to
Synergy for that time period.
This fact is not refuted by Merali's statement in his affidavit
that invoice number 41119-002 "does not accurately reflect the
amount of time" that this forklift was on site at Tuscany Preserve.
First, Synergy's summary judgment evidence does not suggest that
the forklift was only on site at Tuscany Preserve for the four-week
period from May 31 to June 28, 2018. Rather, the evidence
established that the forklift was on site for a total of three months—
an amount of time not accurately reflected by invoice 41119-002
alone. As such, Merali's affidavit does not conflict with Synergy's
summary judgment evidence; both parties agree that invoice 41119-
002 does not accurately reflect the amount of time that particular
forklift was on site at Tuscany Preserve.
Second, even if we were to read Merali's affidavit to state that
that particular forklift was on site during that four-week period for
an amount of time less than four weeks—something that the plain
language of the affidavit does not say—Merali in no way refutes the
other invoices directed at the rental of this forklift or contradicts the
date the equipment was first rented out or the date it was returned
11
to Synergy. As such, his affidavit would only create a question of
fact as to whether Custom Design used the equipment during that
four-week period exclusively at Tuscany Preserve.
Such would not preclude summary judgment of the breach of
contract and open account allegations as the location where the
equipment was used is not a material fact as to those counts. To
preclude summary judgment, "the 'issue' must be one of material
fact. Issues of nonmaterial facts are irrelevant to the summary
judgment determination." Cont'l Concrete, Inc. v. Lakes at La Paz III
Ltd. P'ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000). "A material
fact, for summary judgment purposes, is a fact that is essential to
the resolution of the legal questions raised in the case." Id. Here,
although the question of where the equipment was used may be a
material fact as to the construction lien count against F.I.R.E., it is
not a material fact in the determination of whether Custom Design
and Singh took possession of Synergy's rental equipment pursuant
to their contract with Synergy and failed to pay the cost of the
rental in accordance with their contractual obligation.5
5 Our conclusion as to this issue is not changed by the fact
that Merali also averred in his affidavit that the equipment "was
used, exclusively during the lease period, for construction of site
12
For the reasons discussed, Merali's affidavit did not establish
that a genuine issue of material fact remained. As such, the trial
court did not err in entering summary judgment against Custom
Design and Singh and in favor of Synergy.
Affirmed.
ROTHSTEIN-YOUAKIM, J., Concurs.
ATKINSON, J., Dissents.
improvements at Tuscany Preserve" because his affidavit does not
establish that he "is competent to testify to th[at] matter." See Fla.
R. Civ. P. 1.510(e). He stated in his affidavit that he was on site at
Tuscany Preserve only "multiple days each week" during the rental
period. He did not, however, aver that he was present at Tuscany
Preserve every day during the rental period. He cannot attest to
what occurred at Tuscany Preserve or where the equipment was on
days that he was not present.
13