       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 30, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-936
                         Lower Tribunal No. 11-43840
                             ________________


                               Antonio Otero,
                                    Appellant,

                                        vs.

                            Gilberto Gomez, III,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

     Maria L. Rubio, P.A., and Maria L. Rubio, for appellant.

     Cole, Scott & Kissane, P.A., and Scott A. Cole, for appellee.


Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.

     PER CURIAM.

     Appellant, Antonio Otero, Plaintiff below, appeals from the trial court’s

March 13, 2013, Order Granting Defendant’s Motion in Limine and Amendment to
Motion in Limine, and March 26, 2013, Final Judgment. Because the trial court

effectively granted Defendant-Appellee Gilberto Gomez, III’s (Gomez) untimely

motion for summary judgment, we reverse and remand for further proceedings.

                                      I.       Facts

         In December 2011, Otero filed a complaint for injuries he sustained after

being hit by a car1 while riding his bicycle. Otero rode along a sidewalk and into a

crosswalk when he was hit by a car pulling into the intersection. Otero alleged that

his view of oncoming traffic was obstructed by a wall, which had, years before,

been constructed on Gomez’s property.

         The wall was built by the developer of the area and then altered without

permits by the prior owner. Otero contended the wall constituted a dangerous

condition and that Gomez was negligent for either creating the condition or

allowing the condition to exist.

         Otero sought to introduce the expert witness testimony of Richard E.

Cabrera. Cabrera was going to testify at trial that the wall on Gomez’s property

obstructed a “sight triangle,” and that the wall’s obstruction of drivers’ lines-of-

sight violated certain county ordinances and Florida Department of Transportation

(FDOT) standards.




1   The driver is a nonparty.

                                           2
      On February 15, 2013, Gomez timely filed a motion in limine to exclude

Cabrera’s testimony.     Gomez argued that any evidence concerning county

ordinances, “sight triangles,” and property violations, was not relevant because

Gomez owed no duty to Otero under Williams v. Davis, 974 So. 2d 1052 (Fla.

2007).2

      Four days after filing his motion in limine—on February 19, 2013—Gomez

filed a motion for summary judgment, again relying on Williams. Gomez argued

that, because the wall on his property did not extend into the public right-of-way,

he owed no duty to Otero, and, therefore, could not be liable as a matter of law.

The record is devoid of any notice of hearing on the motion for summary

judgment.
2 In Williams, the Florida Supreme Court considered whether the foreseeable zone

of risk analysis espoused in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla.
1992), applies to private owners of residential property. Specifically, the Williams
court concluded that a private landowner owes no duty to a motorist for torts
arising from foliage located wholly within the bounds of the landowner’s property.
Williams held:

      [W]hile the McCain foreseeable zone of risk analysis applies, we
      conclude that under that analysis owners of private property do not
      owe a duty to motorists on abutting roadways as to the maintenance of
      foliage located wholly within the bounds of the property. We do
      recognize, however, that all property owners owe a duty, under a
      McCain analysis, not to permit the growth of foliage on their property
      to extend outside the bounds of the property and into the public right-
      of-way so as to interfere with a motorist's ability to safely travel on
      the adjacent roadway.

Id. at 1054.


                                         3
      During the pretrial conference on February 21, the trial court informed

Gomez that his motion for summary judgment would not be heard before trial.3

      On February 27, only days before the commencement of trial, Gomez

amended his previously-filed motion in limine. The amended motion sought an

order excluding the introduction of any evidence regarding FDOT design standards

and contained the same arguments as did the motion for summary judgment.

Essentially, Gomez argued he owed no duty to Otero and could not “be liable as a

matter of law, for an alleged obstruction which exists entirely on his property and

does not protrude into the public right-of-way.”

      Prior to the trial commencing, on March 5, the trial court heard the parties’

pretrial motions, including Gomez’s motion in limine and Gomez’s amended

motion in limine. Gomez’s counsel argued that, because the wall at issue was

entirely within the boundaries of Gomez’s property, Gomez owed no duty to

Otero. Notably, while Gomez’s counsel sought to have the case dismissed by the

trial court at the “motion in limine stage,” neither of Gomez’s motions in limine

requested, as relief, that the case be dismissed; the motions merely sought orders

excluding evidence which Gomez argued was not relevant.




3The trial court stated, “We should have had this already heard a long time ago.
You know, a motion to dismiss or a motion for summary judgment.”

                                         4
      Indeed, on several occasions, the trial court queried, “Shouldn’t this be a

motion for directed verdict?” At the conclusion of the hearing, the trial court

reserved ruling on Gomez’s motions in limine and voir dire began.

      The following morning, on March 6, the trial court announced, “I’m ready to

rule on the motion in limine on the issue of duty.” It proceeded:

             After reading Williams . . . I find that there is no duty on behalf
      of the homeowner to the public when the property — when the wall is
      in his property, within his boundaries. I don’t want to make that
      ruling, but in good conscience, I have no choice.

             Your motion is granted.

      Gomez’s counsel then moved, ore tenus,4 to dismiss the complaint, and the

trial court granted the motion and cancelled the trial. On March 13, the trial court

entered an order granting Gomez’s motions in limine.            Subsequently, a final

judgment was entered March 26, in favor of Gomez. This appeal followed.

                                     II.    Analysis

      The issue before us is whether the trial court erred in effectively granting a

motion for summary judgment under the guise of a motion in limine.

      Pursuant to Florida Rule of Civil Procedure 1.510(c), a party moving for

summary judgment must serve its motion on the adverse party at least twenty days

prior to the time specified for the hearing on the summary judgment motion.


4The trial court stated, “Motion is granted, but I’d really rather have it in writing in
an order.”

                                           5
      The record reflects Gomez filed his motion for summary judgment on

February 19, fourteen days prior to the March 5 commencement of trial when the

trial court essentially conducted the unnoticed hearing on Gomez’s summary

judgment motion. Gomez violated the requisites of Rule 1.510(c) by failing to

notice and set the motion for hearing at least twenty days after the filing of the

summary judgment motion. See Brock v. G.D. Searle & Co., 530 So. 2d 428, 430

(Fla. 1st DCA 1988) (“It is reversible error for a trial court to grant summary

judgment based on a motion which fails to comply with the 20-day notice

requirement.”).

      As additional grounds for reversal, we note that it is well settled that a

hearing on a motion in limine “may not serve as a vehicle for presentation of an

unnoticed motion for summary judgment.” Fouts v. Bowling, 596 So. 2d 95, 95

(Fla. 3d DCA 1992); see also Connell v. Cap. City Partners, LLC, 932 So. 2d 442,

444 (Fla. 3d DCA 2006); Wizikowski v. Hillsborough Cnty., 651 So. 2d 1223 (Fla.

2d DCA 1995).

      Also, it is well settled that a court is without authority to grant relief not

requested by a party in the pleading. See Bank of N.Y. Mellon v. Reyes, 126 So.

3d 304, 309 (Fla. 3d DCA 2013) (stating courts are unauthorized to grant relief not

requested in the pleadings). The trial court dismissed Otero’s case on the merits

despite neither motion in limine requesting such relief.



                                          6
         Because Gomez’s motion in limine was used as a vehicle to grant summary

judgment without affording Otero the required notice, the final judgment entered

by the trial court must be reversed. See Brock, 530 So. 2d at 430 (holding that

such a ruling constitutes reversible error); Connell, 932 So. 2d at 444 (“[T]he

granting of relief, which is not sought by the notice of hearing or which expands

the scope of a hearing and decides matters not noticed for hearing, violates due

process.”).

        We reverse and remand the case for further proceedings.5




5   We express no opinion as to the merits of Gomez’s summary judgment motion.

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