vs.                                                                                                        Appeal No. 01-5639-CI-88A




Opinion filed ________________________

Appeal from final Summary Judgment

Pinellas County Court, Civil Division

The Honorable William B. Blackwood

The Honorable Stephen O. Rushing

Robert W. Bleakley, Esquire
101 East Kennedy Blvd., Suite 3400
Tampa, FL  33602
Attorney for Appellant

Jawdet I. Rubaii, Esquire
1358 South Missouri Ave.
Clearwater, FL  33756
Attorney for Appellee


            THIS CAUSE came before the Court on appeal, filed by Amex Assurance Company (Amex), from the Order on Motions for Summary Judgment (Summary Judgment), entered on June 26, 2001, which granted the Plaintiff’s Motion for Summary Judgment by finding that the act of payment, post-suit, by Amex for the sums sought in the complaint was a “confession of judgment” in favor of Tammy Benson (Ms. Benson).  In granting Summary Judgment, the lower court also determined that Ms. Benson is entitled to attorney’s fees and costs pursuant to Florida Statute §627.428.  Upon review of the record and the briefs and being otherwise fully advised in the premises, the Court finds that the lower court committed reversible error in the proceedings below. 

            The record shows that Ms. Benson was insured under a policy of insurance issued by Amex.  During the policy period, Ms. Benson was involved in an automobile accident, on January 23, 2000, in Pinellas County.  The driver and passenger from the other vehicle, Michael and Robin Dunnigan, incurred medical bills from the accident.  Ms. Benson was charged with criminal liability in connection with the accident and faced restitution claims.  Thereafter, Ms. Benson reached a plea agreement and was placed on placed on probation until Ms. Benson paid, as restitution, the Dunnigan’s medical bills.  Ms. Benson paid the medical bills and then brought the underlying cause of action against Amex, alleging a breach of the terms of the insurance policy due to Amex’s failure to pay the medical bills Ms. Benson was legally liable for as a result of the accident. 

            In reviewing the record de novo, it is undisputed that Amex did pay the Dunnigan’s medical bills after Ms. Benson filed her complaint. However, in considering the evidence in the light most favorable to Amex, the Court finds that Ms. Benson has failed to prove conclusively the nonexistence of any genuine issue of material fact.  See Dr. Phillips, Inc. v. L & W Supply Corp., 790 So.2d 539, 542 (Fla. 5th DCA 2001); see also Virginia Ins. Reciprocal v. Walker, 765 So.2d 229, 331 (Fla. 1st DCA 2000)(explaining the appellate standard of review of summary judgment).  The record shows that genuine issues of material fact precluded summary judgment, including whether Ms. Benson complied with the “suits against us” provision contained in her insurance policy and whether Ms. Benson had to sue Amex to receive payment for the aforesaid medical bills.  See id.

            The Summary Judgment must also be reversed as Ms. Benson’s Motion for Summary Judgment was heard and granted without the lower court first ruling on Amex’s pending Motion to Dismiss the Amended Complaint (Motion to Dismiss).  Amex’s Motion to Dismiss was noticed for the hearing held on June 21, 2001.  However, the lower court did not hear the Motion to Dismiss, but instead heard extensive oral argument from Ms. Benson’s counsel on why Ms. Benson was entitled to summary judgment.  The record shows that throughout this hearing, Amex’s counsel repeatedly attempted to remind the lower court that argument on Amex’s Motion to Dismiss had not yet been heard.  Nevertheless, the lower court granted Ms. Benson’s Motion for Summary Judgment without hearing any argument on Amex’s Motion to Dismiss.  The lower court went on to grant Ms. Benson’s related request for attorney’s fees and costs.

            Without addressing the merits of Amex’s Motion to Dismiss, the Court finds that the lower court “got the cart before the horse” in ruling on the unnoticed Motion for Summary Judgment without first hearing and ruling on Amex’s noticed Motion to Dismiss.[1]  The lower court, necessarily, had to first determine the sufficiency of the Amended Complaint before it could determine whether there were any genuine issues of material fact.  See Curtis v. Henderson, 777 So.2d 1017, 1018 (Fla. 2d DCA 2000)(stating that the purpose of a motion to dismiss is to test the legal sufficiency of the complaint).  Additionally, Florida case law provides that unresolved motions directed to the pleadings prevent a case from being “at issue” and, therefore, precluded the entry of final summary judgment under the facts of this case.  See Loss v. Loss, 608 So.2d 39, 40 (Fla. 4th DCA 1992); see also Abbate v. Publix Super Markets, Inc., 632 So.2d 1141, 1142 (Fla. 4th DCA 1994)(ruling that summary judgment was premature when motion to compel was pending); International Jai-Alai Players Assoc. v. Dania Jai-Alai Div. of the Aragon Group, Inc., 563 So.2d 1117, 1118 (Fla. 4th DCA 1990)(finding that the trial court’s entry of a permanent injunction at a time when two motions were pending was reversible error). 

            Therefore, the Court concludes that there were genuine issues of material fact which precluded granting Ms. Benson’s Motion for Summary Judgment and, additionally, that the entry of the final Summary Judgment was premature when Amex’s Motion to Dismiss was still pending. 

            Therefore, it is

            ORDERED AND ADJUDGED that the Order on Motions for Summary Judgment is reversed and this cause is remanded for action not inconsistent with this Order and Opinion.  It is further

            ORDERED AND ADJUDGED that the Appellee’s Motion for Attorney’s Fees for Appellate Work Performed is denied.  It is further

            ORDERED AND ADJUDGED that the Appellant’s Request for Oral Argument is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 22nd day of April 2002.    


Circuit Judge, Appellate Division


Copies Furnished To:

The Honorable Stephen O. Rushing

The Honorable William B. Blackwood

Jawdet I. Rubaii, Esquire

Robert Bleakley, Esquire

[1] The lower court acknowledged at the hearing to Amex, “this is your motion and you haven’t had a chance to say anything yet.”