Here is a piece of wisdom from some unknown source: “How do you eat an elephant? One bite at a time!” Besides the obvious application to pachyderms, this also applies to civil lawsuits. Complex issues of a lawsuit can and should be whittled down before the trial. If the facts of an issue are undisputed, then the judge can decide questions of law through the use of partial Summary Judgments. When all the facts of a case become undisputed, then the entire case can be resolved through a Summary Judgment. When exercised, the use of a Summary Judgment must be done with extreme caution because it cuts off a party’s right to a jury trial.
The linchpin that can lay out the facts in a Summary Judgment is the Affidavit. An affidavit is a sworn statement of facts written down and then signed before a notary public. The creator of the affidavit, the affiant, must swear they are over 18 years old and competent to give the affidavit. For a Summary Judgment, there are more requirements.
Must Have Personal Knowledge
The affiant must testify only to what they have personal knowledge and not what they may have subsequently found out. Think of it this way. Reading Moby Dick provides you with information about harpooning a whale, but it does not give you the personal experience of Queequeg, the fatalistic harpooner aboard the fictitious Pequod.
In the case In re Forfeiture of 1998 Ford Pickup. Identification No. IFTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000), a 1998 Ford pickup truck was forfeited as contraband under the Florida Contraband Forfeiture Act. The driver of the Ford allegedly exposed himself to two young girls. Summary judgment for forfeiture of the Ford was granted based on an affidavit of the arresting officer. Despite the detective’s claim that the facts in the complaint were true based on his personal knowledge, he was not an eyewitness to the offense. The statements were hearsay and not the personal knowledge of the detective. There remained a question of fact and the summary judgment was reversed.
Must Be Clear on What is Personal Knowledge
In the case Colman v Grandma’s Place, Inc, 63 So.3d 929, 932 (Fla. 4th DCA 2011), the claim was unlawful retaliation and wrongful termination of employment. The affiant, the defendant in the case, stated she had “personal knowledge of the matters and/or reviewed the employee’s personnel file.” The affiant made two mistakes here. First, she did not make it clear as to what she had personal knowledge of and what she had reviewed. Second, she did not provide the employee’s personnel file with the affidavit. Anything that is only “reviewed” should be included with the affidavit. In the above case, the appellate court held there remained a question of fact and a summary judgment was inappropriate.
Must Show How They Possess Personal Knowledge
Simply claiming to have personal knowledge is insufficient. The affiant may have to present how the personal knowledge was obtained. In Hoyt v. St. Lucie County, Bd. Of County Comm’rs, 705 So. 2d 119 (Fla. 4th DCA 1998) there was a dispute over the duration of the code violation. The affidavit by the secretary of code enforcement simply stated she had personal knowledge but did not state in detail the facts showing she has such personal knowledge. The summary judgment was reversed.
Another case, Carter v. Cessna Fin. Corp., 498 So. 2d 1319 (Fla. 4th DCA 1986), involved a deficiency judgment following the forced sale of a repossessed aircraft. The Plaintiff, the previous owner of the plane, filed an affidavit claiming the aircraft had deteriorated while in Defendant’s possession. The Plaintiff was only able to surmise it had deteriorated while in the Defendant’s possible but failed to indicate the factual basis for this knowledge.
Affidavit is Hearsay Evidence if Not Based on Personal Knowledge
The above cases hold that personal knowledge is required in an affidavit. Without personal knowledge, does the affidavit still have value? According to Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), an affidavit not based on personal knowledge and that did not set forth facts that would be admissible as evidence, must be considered inadmissible hearsay statements. The affidavit’s value cannot be based on what it contains.
Must Attach Certified Copies of Documents
Another part of an affidavit would be any attached documents. Often, the affidavit is simply a narrative of the events witnessed by the affiant. However, in some instances, the affiant relies on documents to support their personal knowledge. These documents must be admissible as evidence. Merely placing them in an affidavit does not make them sacrosanct.
In a case previously mentioned, Colman v Grandma’s Place, Inc, the affiant did not attach certified copies of documents she had reviewed. In Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992), the appeal involved an affidavit by an attorney for the Defendant claiming personal knowledge of contents in the public records. Since no certified copies of the public records were presented to satisfy the hearsay exception, his affidavit was based on hearsay and was incompetent to support summary judgment.
Must Include Sworn Statements for Attached Documents
The Plaintiff in the case Nichols v. Preiser, 849 So.2d 478, 481 (Fla. App. 2d DCA 2003), filed an appeal to a summary judgment in an action for legal malpractice against Defendant. Defendant attached documents to a summary judgment that were not sworn or certified and therefore not properly authenticated. The appellate court held that the trial court could not properly consider them in deciding a motion for summary judgment. Unsworn or non-certified documents are merely hearsay.
Plaintiff attached an unsworn document to the summary judgment in the case First Union Nat. Bank of Fla. v. Ruiz, 785 So.2d 589, 591 (Fla. App. 5th DCA 2001). The court noted that merely attaching an unsworn document to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla.R.Civ.P. 1.510(e).
Conclusion
Since the summary judgment replaces a trial, the evidence submitted for a summary judgment must meet the same qualifications as evidence for a trial. An affidavit is more than just creating a narrative of events and facts. It is sworn testimony of what the affiant knows. The next time you need to create an affidavit or interrogate an affidavit from an opposing party, question each phrase to see if it is admissible as evidence.