       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 29, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1926
                         Lower Tribunal No. 14-21593
                             ________________


                              Darryl Deshazior,
                                    Appellant,

                                        vs.

         School Board of Miami-Dade County, Florida etc.,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.

     Catherine A. Riggins, for appellant.

      Walter J. Harvey, School Board Attorney, and Cristina Rivera Correa,
Assistant School Board Attorney, for appellee.


Before LAGOA, EMAS and SCALES, JJ.

     EMAS, J.
      In August 2014, Darryl Deshazior, an employee of the School Board of

Miami-Dade County, Florida (“the School Board”), filed a complaint against the

School Board, alleging a breach of the collective bargaining agreement.        In

February 2016, the School Board moved for summary judgment, supported by

affidavits and other evidence, asserting that Deshazior’s claim was barred by his

failure to timely initiate and exhaust the grievance process mandated by the terms

of the collective bargaining agreement; and that Deshazior failed to establish a

prima facie case of breach of contract. The trial court entered final summary

judgment in favor of the School Board, and Deshazior appealed.

      The trial court properly determined that the affidavits submitted by the

School Board were competent evidence and that the affidavits and other evidence

were legally sufficient to conclusively establish the absence of any genuine issue

of material fact. See Buzzi v. Quality Serv. Station, Inc., 921 So. 2d 14 (Fla. 3d

DCA 2006); Alvarez v. Florida Ins. Guar. Ass’n, Inc., 661 So. 2d 1230, 1232 (Fla.

3d DCA 1995) (holding that an affidavit need not state that it is based upon

personal knowledge where the affiant is shown to be in a position where he would

necessarily possess such knowledge).

      The trial court also determined that Deshazior failed to timely serve his

notice of evidence in opposition to the School Board’s summary judgment motion,

and we find no abuse of discretion in excluding such evidence. See Fla. R. Civ. P.



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1.510(c) (providing that evidence in opposition to summary judgment must be

served at least five days prior to the day of the hearing or delivered no later than

5:00 p.m. two business days prior to the day of the hearing); Independent Fire Ins.

Co. v. Rogers, 580 So. 2d 229 (Fla. 3d DCA 1991) (holding that trial court’s

decision not to consider untimely affidavit in opposition to motion for summary

judgment was not an abuse of discretion); Binford v. City of Winter Springs, 969

So. 2d 1098, 1099 (Fla. 5th DCA 2007) (observing: “It is well established that an

affidavit in opposition to summary judgment which is filed on the day of the

summary judgment hearing is untimely and the trial court has discretion to

disregard it.”)

      Given the absence of any genuine issue of material fact, all that remained for

determination was an issue of law: the interpretation and application of the terms

of the collective bargaining agreement. Upon our de novo review, Volusia Cty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000), we affirm the trial

court’s final summary judgment, and hold that the trial court properly determined

that Deshazior’s claim was barred by his failure to timely initiate the grievance

process as mandated by the terms of the collective bargaining agreement, and his

failure to exhaust that administrative remedy. See Bello v. Miami Dade Cty., Fla.,

167 So. 3d 464, 469 (Fla. 3d DCA 2015) (holding: “It is a well settled princip[le]

that a party, when bound by a collective bargaining agreement, must exhaust an



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administrative remedy prior to litigating in court”) (quoting Public Health Trust v.

Hernandez, 751 So. 2d 124, 125 (Fla. 3d DCA 2000)).        We find no merit in the

other issues raised by Deshazior.

      Affirmed.




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