The Seemingly “Magical Aura” of Exhibits When Attached to a Pleading Under the Florida Rules of Civil Procedure
No doubt that Florida litigators, from time to time, find themselves moving for summary judgment pursuant to Fla. R. Civ. P. 1.510, particularly when prosecuting a contract-based action and other times defending a motion for summary judgment. The summary judgment movant will necessarily argue to the trial court that the standard for summary judgment has been satisfied. The current rule expressly provides “the judgment sought 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.”1 A material, potentially dispositive question that may arise in the summary judgment context is whether an exhibit attached to the movant’s pleading must also be authenticated to be considered and relied upon by the trial court in reaching its decision.
To answer this question, one should consider 1) the plain meaning of the applicable rules of civil procedure; 2) the proper manner of interpreting the rules; 3) how to apply the rules of construction to interpret the rules; 4) the applicable Florida common law jurisprudence; and 5) the Florida Evidence Code.
The Florida Rules of Civil Procedure
Fla. R. Civ. P. 1.100(a) expressly provides for and defines four types or classes of pleadings that are permitted: 1) a complaint, 2) a petition, 3) an answer, and 4) a reply.2 Rule 1.130(a) prescribes that all bonds, notes, bills of exchange, contracts, accounts, or documents3 (or copies thereof) upon which action may be brought or defense made must be incorporated in or attached to the pleading.4 In other words, an instrument that provides for a claim or cause of action must be attached to a complaint, whereas an instrument that provides an affirmative defense must be attached to an answer and an instrument that provides an avoidance to an affirmative defense must be attached to a reply.5 The second part of Rule 1.130(b) expressly provides that any exhibit attached to a pleading must be considered a part thereof for all purposes.6
“Florida Rule of Civil Procedure 1.130 provides that a written contract or document that forms the basis of a claim for relief shall be attached to or incorporated in the pleading and any exhibit that is attached to the pleading is considered a part of that pleading.7 T he purpose of this rule ‘is to apprise the defendant of the nature and extent of the cause of action so that he may plead with greater certainty.’ Sachse v. Tampa Music Co. , 262 So. 2d 17, 19 (Fla. 2d DCA 1972).”8
And the particular parts of the rules concerning motions for summary judgment provide:
“(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued9 and shall 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.…The adverse party shall identify…any summary judgment evidence on which the adverse party relies.…The judgment sought shall be rendered forthwith if the pleadings and the 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 judgment as a matter of law….10
“(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.”11
With the relevant portions of the rules in plain view, the proper manner of interpreting these rules should be considered.
Construction and Interpretation of the Florida Rules of Civil Procedure
To begin with, the Florida Rules of Civil Procedure were adopted for utilization in Florida state trial courts by the Florida Supreme Court, which rules carry the force of law.12 Accordingly, the rules of civil procedure are mandatory in civil court proceedings,13 and it is not subject to dispute that Florida state court civil lawsuits are governed by the Florida Rules of Civil Procedure.14
“Florida does not allow such discretion on the part of the trial courts to ignore the Rules of Evidence or the Rules of Civil Procedure. Failure to follow the [r]ules constitutes an error of law, not an abuse of discretion. While the application of the [r]ules to a particular fact pattern may require the use of discretion, the interpretation of the [r]ules does not.”15
Florida courts have also consistently held that the rules of civil procedure are considered in pari materia.16 T he doctrine in pari materia is a principle of statutory (and rule) construction that requires statutes (and rules) relating to the same subject to be construed together to harmonize the statutes (and rules).17 Another principle of statutory (or rule) construction, expressio unius est exclusio alterius, means that in construing a statute (or rule), the expression of one thing implies the exclusion of another.18 As Calabro v. State, 995 So. 2d 307 (Fla. 2008), informs:
“This [c]ourt has held from time immemorial that we must primarily determine the effect and purpose of statutes and rules of court by first examining the actual words used in the statute or rule and determine the plain meaning of those words. Cf. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (citing A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). Assuming that the plain meaning of the words used can be determined, we are bound to apply that plain meaning to resolve legal disputes that involve application of the statute or rule. Hence, courts are initially bound to apply the terms of [the rule] according to the plain meaning of those terms.”19
Thus, if the language is clear and unambiguous, there is no need to engage in statutory (or rule) construction, and the statute (or rule) should be given its plain and obvious meaning.20
Accordingly, unless Rules 1.130(b), 1.510(c), and 1.510(e) can reasonably be deemed ambiguous, their plain meaning controls. Ambiguity is defined as the condition of admitting more than one meaning.21 It does not appear that either Rule 1.130 or Rule 1.510 is ambiguous, since the rules do not appear susceptible to more than one meaning. It is also evident that Rule 1.510 controls motions for summary judgment, so in the event of any conflict between Rule 1.510 and Rule 1.130(b), the specific rule on summary judgment would control over the general rule concerning exhibits attached to pleadings.22 Regardless, there does not appear to be any conflict between Rule 1.510 and Rule 1.130(b), particularly because Rule 1.510 expressly incorporates pleadings upon which Rule 1.130(b) is grounded insofar as exhibits attached to a pleading.23
Thus, the controlling legal principles to be applied provide that the Florida Rules of Civil Procedure 1) carry the force of law; 2) are mandatory in Florida state court civil proceedings; 3) are generally considered in pari materia; 4) are interpreted according to their plain meaning; and 5) are not ambiguous.
Interpretation of the Applicable Rules
To interpret the applicable rules, one must begin by bringing together the most relevant parts of the rules implicated — Rules 1.130(b), 1.510(c), and 1.510(e). Plainly stated, any exhibit attached to a pleading shall be considered a part thereof for all purposes.24 There is no mistaking the plain meaning of Rule 1.130(b) because there are no exceptions, qualifiers, contingencies, or otherwise stated in the rule. Nor does the rule say anything about authentication of exhibits attached to a pleading.
Upon a motion for summary judgment, the judgment sought shall be rendered forthwith if the pleadings and the 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 judgment as a matter of law.25 The doctrine of in pari materia certainly seems to apply because both of these rules, 1.130(b) and 1.510(c), involve or concern pleadings.26 Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.27
The phrase, “the judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence,” rather clearly indicates that both the “pleadings” and “the summary judgment evidence” on file are to be taken into consideration. This conclusion is further enhanced because any exhibit attached to a pleading shall be considered a part thereof for all purposes. It logically follows that the pleading, which includes the attached exhibits, are required to be considered by a trial court judge upon adjudication of a motion for summary judgment. The question, however, still remains whether an exhibit attached to a pleading must be authenticated before being considered upon a motion for summary judgment.
On the latter question, Rule 1.510(e) plainly states that “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”28 The operative phrase “referred to in an affidavit” would seem to be dispositive of the question because the rule does not state “referred to in an affidavit and exhibits attached to a pleading.”29 If the rule drafters had intended to include exhibits attached to a pleading, they certainly could have stated the rule as such, and the Florida Supreme Court would have been at liberty and within its authority to adopt such a proposed rule. “Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.”30 As U.S. Supreme Court Justice Oliver Wendell Holmes concluded over 100 years ago, “[w]hatever the consequences, we must accept the plain meaning of plain words.”31
Rule 1.510 simply does not mandate that exhibits attached to a pleading must be authenticated prior to being considered on a motion for summary judgment.32 T his is particularly true when the plain meaning of the rule is controlling. The summary judgment rule requirement that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith, does not change or alter this conclusion because the rule is only concerned with papers referred to in an affidavit, not documents or exhibits attached to a pleading.
Accordingly, 1) neither Rule 1.130(b), 1.510(c), nor 1.510(e) contain a requirement that exhibits attached to a pleading must be authenticated; 2) summary judgment Rule 1.510(c) requires consideration of the pleadings on summary judgment motions; and 3) Rule 1.130(b) requires that exhibits attached to a pleading be considered for all purposes, without excepting summary judgment motions. Therefore, the relevant Florida Rules of Civil Procedure in this context cannot be said to require that exhibits attached to a pleading must be authenticated prior to the exhibit being considered upon a motion for summary judgment. With the foregoing interpretation of the rules implicated, it is time to examine the applicable Florida common law jurisprudence, which affirmatively lends additional support.
Florida Common Law Jurisprudence
Given the plain meaning of Rules 1.130(b), 1.510(c), and 1.510(e), it should not be surprising that Florida court majorities faced with exhibits attached to a pleading have been consistent in their recognition of the dictates of the relevant rules. Indeed, “Florida courts have consistently held that exhibits attached to complaints are considered part of the pleadings.”33
A 12-year-old decision by a Third District appellate panel, Buzzi v. Quality Serv. Station, Inc., 921 So. 2d 14 (Fla. 3d DCA 2006), was directly on point with the question presented, and generated a majority opinion written, a concurring opinion, and a dissenting opinion.34 Upon review of an order granting partial summary judgment on a counterclaim for eviction, the majority opinion stated, in material part: “Buzzi argues that the lower court erred when it considered an unauthenticated letter of Motiva demanding that the car-wash business be terminated.” The letter was attached to the counterclaim pleading.35 We reject both arguments”36 largely, because the letter was merely redundant to the summary judgment affidavit. Likewise, in his concurring opinion, Judge Gersten, relying on other district court decisions, stated in material part:
“Lastly, the trial court did not err in considering the Motiva letter. Because the letter is attached as an exhibit to the amended complaint and counterclaim, it is a part of the pleadings. Pleadings, by law, can be considered for any purpose, including a motion for summary judgment. See Fla. R. Civ. P. 1.130(b) (‘any exhibit attached to a pleading shall be considered a part thereof for all purposes’). It can be error for the court to fail to consider the amendments for purposes of summary judgment when there is no dispute that an amendment has been made. See JNC Enters., Ltd. v. ICP, 1, Inc., 777 So. 2d 1182 (Fla. 5th DCA 2001).37 Further, the trial court can consider the parties’ initial pleadings, amended complaint, counterclaim, the Motiva letter, and Santos’ affidavit for purposes of summary judgment. See Romeo v. Romeo, 907 So. 2d 1279 (Fla. 2d DCA 2005). Whether the trial court’s order expressly states reliance on the Motiva letter is of no import. Because the trial court is entitled to consider pleadings in connection with affidavits for purposes of summary judgment, it committed no error. See Fla. R. Civ. P. 1.510(c). Therefore, I res pectfully concur with the majority.”38
Thus, Buzzi and JNC Enterprises are presently the controlling decisions binding upon all Florida trial courts concerning unauthenticated exhibits attached to a summary judgment movant’s pleading.39 However, the concurrence’s reliance on other district court decisions — JNC Enterprises and Romeo — is notable and worthy of discussion. In JNC Enterprises, the plaintiff sued for breach of contract, specific performance and fraud. The court entered summary judgment for defendant ICP, and plaintiff appealed. JNC asserted the appellate argument that the trial court should not have considered amendments to the contract. The amendments were attached to ICP’s pleading but, the appellate court, relying on Harry Pepper & Associates v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971), and Rule 1.130(b), held it would have been error for the trial court to fail to consider the amendments.40
The second decision, Romeo, was a challenge to a summary final judgment of dissolution of marriage, which the court reversed.41 The most relevant legal principle to be taken from Romeo is that to be entitled to summary judgment, the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any” must demonstrate there is no genuine issue as to any material fact, and those facts entitle to movant to a judgment.42 Unfortunately, the Romeo movant failed to sustain his burden.43 In contrast, Judge Ramirez’s dissenting opinion criticized the Buzzi majority and concurring opinions’ reliance on the unauthenticated Motiva letter attached to the counterclaim pleading.
Relying on First Union Nat’l Bank of Fla. v. Ruiz, 785 So. 2d 589, 591 (Fla. 5th DCA 2001), Judge Ramirez initially concluded that an unsworn letter, the authenticity of which is not acknowledged, cannot be used to support a motion for summary judgment and further found that Rule 1.130(b) was legally insufficient to support the use of an unauthenticated letter. The opinion stated in material part:
“The use of the Motiva letter runs counter to a long line of Florida and federal jurisprudence holding that unsworn and unauthenticated documents cannot be used either to grant or deny summary judgment. See First Union Nat’l Bank of Fla., 785 So. 2d at 591, stating that (‘merely attaching an unsworn document, in this case the EEOC letter, to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Florida Rule of Civil Procedure 1.510(e)’); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (‘Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in [R]ule 1.510(e), Florida Rule of Civil Procedure. Moreover, [R]ule 1.510(e) by its very language excludes from consideration on a motion for summary judgment, any document that is not one of the enumerated documents or is not a certified attachment to a proper affidavit’)44 ( footnote omitted); Harris v. Wilson, 656 So. 2d 512, 516-17 (Fla. 1st DCA 1995) (‘The language of rule 1.510, Florida Rules of Civil Procedure, reflects a clear intent to allow courts to consider only that information which has been either admitted by the parties ( i.e. , admissions, interrogatories, or answers) or which establishes the existence or nonexistence of material facts in dispute through affidavits….The document submitted by the appellants do not comport with this intent of the rule as they were not timely filed nor were they accompanied by an affidavit….’); Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (‘The Declaration of Forfeiture was unauthenticated….The copy of the letter from Tunnell was an unauthenticated exhibit attached to the motion to dismiss….Tunnell failed to attach either document to affidavits that presumably would have ensured their admissibility ’); C. Wright, A. Miller & M.”45
A closer examination of the four decisions cited in the Buzzi dissenting opinion also is warranted. Beginning with First Union Nat’l Bank of Fla. v. Ruiz, 785 So. 2d 589 (Fla. 5th DCA 2001), Ju dge Ramirez’s dissenting opinion disclosed the improper attempt to attach an unsworn document, the EEOC letter, to a motion for summary judgment, which did not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).46 U nfortunately, the Ruiz decision did not concern or involve an exhibit attached to a pleading. Likewise, the next decision, Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997), did not concern or involve an exhibit attached to a pleading. Instead, Judge Ramirez’s dissenting opinion disclosed, like Ruiz, documents not “sworn to or certified” were improperly attached to the motion for summary judgment.47
The third decision cited by Judge Ramirez’s dissenting opinion, Harris v. Wilson, 656 So. 2d 512 (Fla. 1st DCA 1995), disclosed that the appellants attempted to file, as an exhibit to their supplemental response to defendants’ motion for summary judgment, various documents purportedly obtained through discovery without an accompanying affidavit.48 Once again, Harris did not concern or involve an exhibit attached to a pleading.
Lastly, in Tunnell v. Hicks, 574 So. 2d 264 (Fla. 1st DCA 1991), Judge Ramirez’s dissenting opinion disclosed that Tunnell concerned a copy of a letter from Tunnell that was an unauthenticated exhibit attached to the motion to dismiss.49 Thus, Tunnell, like Ruiz, Bifulco, and Harris, also did not concern or involve an exhibit attached to a pleading. Moreover, it is black-letter law that a “motion” is not a “pleading.”50 Therefore, while at first blush Judge Ramirez’s dissenting opinion may have seemed persuasive, all of the Florida appellate decisions cited in the dissenting opinion did not appear to support his dissent on the issue concerning exhibits attached to a pleading. If there truly existed a long line of Florida and federal jurisprudence holding that unsworn and unauthenticated documents attached to a pleading cannot be used either to grant or deny summary judgment, Judge Ramirez’s dissenting opinion did not cite and disclose any of those decisions.51
A decision by the Second District also should be considered for purposes of summary judgment motions and exhibits attached to a pleading. In Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865 (Fla. 2d DCA 2011), the appellant challenged the granting of summary judgment in a foreclosure matter, which judgment was reversed.52
“Here, Gulf View’s self-serving sworn assertion that it was “not indebted” to Land Development was contradicted by its own prior admissions. The record shows that Land Development attached copies of the promissory note and mortgage to its original complaint for foreclosure. As such, those documents became part of the pleading for all purposes, including summary judgment. See Fla. R. Civ. P. 1.130(b). Gulf View admitted in its answer that it had executed and delivered the promissory note and mortgage to Land Development. Gulf View’s subsequent allegation that it was “not indebted” to Land Development contradicted the pleadings in the record and thus actually created an unresolved disputed issue of material fact on the face of the pleadings. This contradiction, standing alone, rendered summary judgment in favor of Gulf View improper.”53
Clearly, the unauthenticated promissory note and mortgage attached to the complaint should have served to defeat the summary judgment motion, just as the reviewing court found on appeal.54 I n a subsequent decision, the Fourth District cited BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), for the proposition that the court reversed summary judgment in a mortgage foreclosure case in which an “incomplete, unsigned, and unauthenticated assignment attached as an exhibit to a pleading” did not constitute “admissible evidence” establishing the plaintiff’s standing to sue.55 However, the Fourth District in Pines Children’s Fitness Center v. Shoppes at Pembroke, LLC, 82 So. 3d 1023 (Fla. 4th DCA 2011), seems to have misconstrued BAC Funding, particularly, since there was no assignment, unauthenticated or otherwise, in BAC Funding. In the BAC Funding opinion, the court clearly stated, “U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage.”56 Instead, the Second District expressly relied on the unauthenticated copy of the mortgage attached to U.S. Bank’s complaint; the exhibit did not show that U.S. Bank had standing to foreclose the mortgage.57
It should be clear that, in addition to Buzzi, Land Development Services, JNC Enterprises, and BAC Funding, all wholly support the interpretation of Rules 1.130(b), 1.510(c), and 1.510(e) discussed in this article. Evidently, exhibits attached to pleadings have been bestowed with a distinct, unique, and virtually magical aura under the Florida Rules of Civil Procedure.58 Any exhibit attached to a pleading, even if not authenticated, shall be considered a part thereof for all purposes, including for purposes of summary judgment.59
Florida’s Evidence Code
The Florida Evidence Code applies when a trial court is presented with a motion for summary judgment.60 T here are documented occasions when the Florida Evidence Code was in tension with the Florida Rules of Civil Procedure.61 Thus far, that tension has been resolved in favor of Fla. R. Civ. P. 1.330(a)(3).62 In Friedman v. Friedman, 764 So. 2d 754 (Fla. 2d DCA 2000), the court held that the admissibility of a discovery deposition of a nonparty witness as substantive evidence continues to be governed by Rule 1.330(a)(3).
Similarly, in Castaneda v. Redlands Christian Migrant Ass’n, Inc. , 884 So. 2d 1087 (Fla. 4th DCA 2004), the court held that the admissibility of a discovery deposition of a witness as substantive evidence continues to be governed by Rule 1.330(a)(1).
“Section 90.902 permits evidence to be ‘self-authenticated’ when ‘the document itself discloses sufficient information to be admitted without further proof of its genuineness.’…Accordingly, self-authentication is said to be an “exception” to the general requirement of authentication.63
“[A]uthentication or identification of evidence is required as a condition precedent to its admissibility. §90.901, Fla. Stat. (2006). Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic. ITT Real Estate Equities, Inc. v. Chandler Ins. Agency, Inc., 617 So. 2d 750 (Fla. 4th DCA 1993). Authentication by circumstantial evidence is permissible; ‘evidence may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.’ Id. at 751. A court may consider circumstances of discovery in determining prima facie authenticity. See U.S. v. Elkins, 885 F.2d 775 (11th Cir. 1989); U.S. v. Dumeisi, 424 F.3d 566 (7th Cir. 2005). The trial court has great latitude in determining whether the proponent of evidence has met the burden of establishing a prima facie case of authenticity. E.g. , State v. Love, 691 So. 2d 620 (Fla. 3d DCA 1997).”64
Thus, even under the Florida Evidence Code, a trial court may find that exhibits attached to a pleading may be excepted from the requirement for the proponent to produce extrinsic evidence to authenticate those exhibits. Instead, exhibits attached to a pleading may fly under the radar and may not require authentication.
Conclusion
It may appear contrary to Florida law that unauthenticated exhibits may be considered by a trial court when presented with a motion for summary judgment pursuant to Rule 1.510. Nevertheless, a majority of Florida district courts of appeal that have considered the issue have held that a trial court may not only consider such unauthenticated exhibits but must consider unauthenticated exhibits attached to a pleading based upon the unambiguous dictate of Rule 1.130(b). Likewise, Rule 1.510 requires consideration of the pleadings on file as well as any attached exhibits. The magical aura that exhibits seemingly exude when attached to a pleading may just be a remarkable anomaly in summary judgment proceedings under Florida law.65
1 Fla R. Civ. P. 1.510(c).
2 Fla R. Civ. P. 1.100(a).
3 An exhibit to a pleading is simply a document. See Blumstein v. Sports Immortals, Inc., 67 So. 3d 437, 439 (Fla. 4th DCA 2011) (“Attached to the complaint as an exhibit, this document lists its subject as the Evaluation of Hall of Fame Baseball Montage of the original inductees in Baseball’s Hall of Fame.”).
4 Fla R. Civ. P. 1.130(a).
5 The ordinary meaning of the term instrument can include those documents having independent legal significance, such as contracts, deeds, wills, bonds, or leases, as well as a more expansive definition of anything reduced to writing, a document or a formal or solemn character, a writing given as a means of affording evidence. WFTV, Inc. v. Wilken, 675 So. 2d 674, 677 (Fla. 4th DCA 1996) (citing Black’s Law Dictionary 801 (6th ed. 1990)). See note 4.
6 Fla R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”).
7 Emphasis in original.
8 Diaz v. Bell MicroProducts-Future Tech., Inc. , 43 So. 3d 138, 139-40 (Fla. 3d DCA 2010).
9 The rule on motions for summary judgment, in part, appears somewhat redundant to the rule concerning motions in general. See Fla R. Civ. P. 1.100(b) (“An application to the court for an order shall be by motion which shall, be made in writing…shall state with particularity the grounds therefore, and shall set forth the relief or order sought.”).
10 See note 1.
11 Fla R. Civ. P. 1.510(e).
12 Lundstrom v. Lyon, 86 So. 2d 771, 772 (Fla. 1956) (“The [S]upreme [C]ourt shall have the following powers [adopting rules], and action taken by it thereunder shall have the force of law.”).
13 See id.
14 See Hays v. Lawrence, 1 So. 3d 1176, 1177 (Fla. 5th DCA 2009) (“In a probate action, if the case is determined to be an adversary proceeding, it shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.”).
15 Castaneda v. Redlands Christian Migrant Ass’n, Inc. , 884 So. 2d 1087, 1089-93 (Fla. 4th DCA 2004).
16 Sunrise Shopping Center, Inc. v. Allied Stores Corp., 270 So. 2d 32, 34 (Fla. 4th DCA 1972); Kennedy v. Kennedy, 298 So. 2d 525, 526 (Fla. 2d DCA 1974) (same); Siboni v. Allen, 52 So. 3d 779, 780 (Fla. 5th DCA 2011) (same).
17 Deen v. Wilson, 1 So. 3d 1179, 1182 (Fla. 5th DCA 2009) (citing Fla. Dep’t of State v. Martin, 916 So. 2d 763 (Fla. 2005)).
18 Deen v. Wilson, 1 So. 3d at 1182 (citing Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)).
19 Calabro v. State, 995 So. 2d 307, 314 (Fla. 2008).
20 Id.
21 Donovan Marine, Inc. v. Delmonico, 40 So. 3d 69, 71 (Fla. 4th DCA 2010).
22 See State v. J.M., 824 So. 2d 105, 112 (Fla. 2002) (“Under that analysis, if we were to find conflict between the provisions…,we would apply the long-recognized principle of statutory [or rule] construction that where two statutory [or rule] provisions are in conflict, the specific statute [or rule] controls over the general statute [or rule].”).
23 See note 6.
24 Id.
25 See note 1.
26 See note 18.
27 See note 12.
28 Id.
29 See 1000 Friends of Florida, Inc. v. Palm Beach County, 69 So. 3d 1123, 1127 (Fla. 4th DCA 2011) (“We find the plain language controlling, but we also point to the canons of construction for further support. One rule of construction, for example, is “expression unius est exclusio alterius” or “to express or include one thing implies the exclusion of the other.”) (citing Black’s Law Dictionary (9th ed. 2009)).
30 1000 Friends of Florida, 69 So. 3d at 1128, n.3 (quoting Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution & Laws, in a Matter of Interpretation: Federal Courts & The Law 24 (Amy Gutmann ed. 1997)).
31 1000 Friends of Florida, 69 So. 3d at 1127 (citing United States v. Brown, 206 U.S. 240, 244 (1907)).
32 See Deen v. Wilson, 1 So. 3d 1179, 1182 (Fla. 5th DCA 209) (“providing the expressions of one thing implies the exclusion of another”).
33 Labbee v. Harrington, 913 So. 2d 679, 683-84 (Fla. 3d DCA 2005) (reversing order dismissing Labbee’s complaint for lack of personal jurisdiction where trial court failed to consider the exhibits attached to the complaint).
34 Buzzi v. Quality Serv. Station, Inc. , 921 So. 2d 14 (Fla. 3d DCA 2006).
35 Id. at 15-16.
36 Id. (“Similarly, we find that to the extent that the lower court took into consideration the Motiva letter, it likewise did not err.”).
37 The point made by the concurring opinion was supported by JNC Enters., Ltd. v. ICP, 1, Inc., 777 So. 2d 1182, 1184 (Fla. 5th DCA 2001). JNC affirmed a summary judgment entered in favor of ICP, in part, on a breach of contract claim where the amendments to the contract were attached as an exhibit to the pleading. Id.
38 Buzzi, 921 So. 2d at 16 (Gersten, J., concurring). Strangely enough, being one of the two judges joining in the majority opinion, to an extent, Judge Gersten expressly concurred with himself.
39 Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (citing Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) (“Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”).
40 JNC Enters., Ltd. v. ICP, 1, Inc., 777 So. 2d 1182, 1184 (Fla. 5th DCA 2001). See note 46.
41 Romeo v. Romeo, 907 So. 2d 1279, 1280 (Fla. 2d DCA 2003).
42 Id. at 1283 (citing Fla. R. Civ. P. 1.510(c)).
43 Id. at 1283-84.
44 The term “enumerated” is often used in the law as the equivalent to “mentioned specifically” or “designated” or “expressly named.” Black’s Law Dictionary 369 (6th ed. 1991). Unfortunately, the plan language of Rule 1.510(e) does not contain any enumerated documents.
45 Buzzi, 921 So. 2d at 17-18 (Ramirez, J., dissenting). Notably, the dissent did not cite any federal decisions. Id.
46 Id. at 18 (Ramirez, J., dissenting) (citing First Union Nat’l Bank of Fla. v. Ruiz, 785 So. 2d 589, 591 (Fla. 5th DCA 2001)).
47 Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997).
48 Harris v. Wilson, 656 So. 2d 512, 516-17 (Fla. 1st DCA 1995).
49 Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991).
50 Green v. Sun Harbor Homeowners’ Ass’n, Inc. , 685 So. 2d 23, 26 (Fla. 4th DCA 1996) (Hauser, J., dissenting) (citing White v. Fletcher, 90 So. 2d 129 (Fla. 1956); Harris v. Lewis State Bank, 436 So. 2d 338 (Fla. 1st DCA 1983); Raulerson v. Hamm, 394 So. 2d 1144 (Fla. 4th DCA 1981)); Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So. 2d 1261, 162-63 (Fla. 1998) (adopting view of dissent of Associate Judge Hauser) (“A motion to dismiss is not a pleading.”); Motzer v. Tanner, 561 So. 2d 1336, 1338 (Fla. 5th DCA 1990) (“Motions are not pleadings.”).
51 See note 48.
52 Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d 865, 866 (Fla. 2d DCA 2011).
53 Id. at 870 (reversing summary judgment rendered in favor of movant, Gulf View).
54 Id.
55 Pines Children’s Fitness Center v. Shoppes at Pembroke, LLC, 82 So. 3d 1023, 1024 (Fla. 4th DCA 2011) (per curiam).
56 BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d at 938.
57 Id.
58 Perhaps, the uniqueness arises from a presumption that the exhibit is material to the claims or defenses alleged, as the rule requires. See Fla. R. Civ. P. 1.130(a) (providing, in relevant part, “a copy thereof or a copy of the portions thereof material to the pleadings”).
59 Buzzi, 921 So. 2d at 15-16 (upon a counterclaim for eviction); Id. at 16 (Gersten, J., concurring).
60 See Arce v. Wackenhut Corp. , 40 So. 3d 813, 814-17, n.3 (Fla. 3d DCA 2010) (reviewing order on summary judgment, pursuant to Rule 1.510, and considering public records exception to hearsay rule under
Fla. Stat. §90.803(8), as well as §
90.902, concerning self-authentication).
61 See Friedman v. Friedman, 764 So. 2d 754, 754 (Fla. 2d DCA 2000) (“The issue presented in this appeal requires some discussion, however, because it targets the tension between the Florida Rules of Civil Procedure and the Evidence Code concerning the admissibility into evidence of a nonparty’s deposition.”).
62 Id. at 755; see Castaneda v. Redlands Christian Migrant Ass’n, Inc. , 884 So. 2d 1087, 1089-93 (Fla. 4th DCA 2004) (discussed further along).
63 Sunnyvale Maritime Co. v. Gomez, 546 So. 2d 6, 7-8 (Fla. 3d DCA 1989).
64 Casamassina v. United States Life Ins. Co., 958 So. 2d 1093, 1099 (Fla. 4th DCA 2007).
65 Cf. Matter of Juan R. v. Necta V, 374 N.Y.S.2d 541, 544 (N.Y. Fam. Ct. 1975) (“Simple consideration of the almost magical aura of…[court] proceedings will bear this out.”).
H. Michael Muñiz , B.C.S., is Florida Bar board certified in appellate practice, and specializes in appeals and litigation support. He obtained a B.S. in business administration from SUNY at Buffalo; a C.P.A. license from the Board of Accountancy of the State of Florida; and a J.D. from the Shepard Broad Law School at Nova Southeastern University. He is admitted to practice in all Florida state and federal courts, the District of Columbia, the 11th Circuit Court of Appeals, the Federal Circuit Court of Appeals, and the U.S. Supreme Court.
