         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


LINDA JIAORONG SKELTON,

             Appellant,

 v.                                                     Case No. 5D15-4277

REAL ESTATE SOLUTIONS HOME
SELLERS, LLC,

             Appellee.

________________________________/

Opinion filed November 4, 2016

Appeal from the Circuit Court
for Volusia County,
William A. Parsons, Judge.

Linda Jiaorong Skelton, Daytona Beach,
pro se.

Michael P. Kelton, of Paul, Elkind, Branz &
Kelton, P.A., Deland, for Appellee.


EDWARDS, J.

      Linda Skelton (“Appellant”) sued Real Estate Solutions Home Sellers, LLC

(“Appellee”), seeking return of her personal property that she alleged Appellee improperly

removed from the house she occupied.          Appellant appeals from the final summary

judgment entered in favor of Appellee, denying her replevin claim. The parties asserted

diametrically opposed versions of the facts in their respective sworn affidavits. We find
there were disputed issues of material fact regarding removal of Appellant’s property from

the house. Additionally, as part of its rationale for granting summary judgment, the trial

court erroneously relied upon section 83.62, Florida Statutes (2015). That statutory

provision and related immunity provisions concern the rights and duties of a landlord

retaking a leased premises and dealing with any personal property left behind by the

tenant. Here, there was no landlord-tenant relationship between the parties. We reverse

the final summary judgment and remand for further proceedings.

                                    Standard of Review

       “Summary judgment is proper if there is no genuine issue of material fact and if the

moving party is entitled to judgment as a matter of law.” Volusia Cty. v. Aberdeen at

Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W.

Condo. Ass’n, 736 So. 2d 58, 60 (Fla. 1st DCA 1999)). “The standard of review of a

summary judgment order is de novo and requires viewing the evidence in the light most

favorable to the non-moving party.” Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA

2000) (citing Walsingham v. Dockery, 671 So. 2d 166, 172 (Fla. 1st DCA 1996)). “If the

‘slightest doubt’ exists, then summary judgment must be reversed.” Id. (citing Hancock v.

Dep’t of Corr., 585 So. 2d 1068, 1070-71 (Fla. 1st DCA 1991)). “In ruling on a motion for

summary judgment, the court may neither adjudicate the credibility of the witnesses nor

weigh the evidence.” Id. (citing Hernandez v. United Auto. Ins. Co., Inc., 730 So. 2d 344,

345-46 (Fla. 3d DCA 1999)).

                                  Sequential Foreclosures

       In February 2014, Appellant was the successful bidder at a foreclosure auction for

the subject real property (“the house”) and a certificate of title was issued to her. Appellant




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Because section 83.62 immunity cannot shield Appellee here, it was error for the trial

court to use that as a basis for granting final summary judgment.

       Appellee’s third summary judgment argument, that Appellant’s personal property

was properly removed from the house and placed at or near the property line refers to

language in section 83.62. This legal argument was supported by an affidavit from

Appellee’s manager saying in conclusory fashion that “all personal property was removed

from the premises and placed to or near the property line.” However, in addition to the

inapplicability of that statute to this case, Appellant factually disputed the assertion that

her property had been so removed. In terms equally as conclusory in nature as those

employed by Appellee, she stated in her opposing affidavit that Appellee “did not remove

[her] household goods and belongings to the sidewalk near the property line.” Needless

to say, where the personal property was placed and who removed it from the property are

genuine issues of fact that need to be resolved either by further evidence or by the trier

of fact.

       Appellee’s fourth argument, that it did not possess any of Appellant’s personal

property, would be a valid defense to a claim for replevin, if it had been properly supported

by admissible record evidence.       In a replevin action, “although possession by the

defendant of the subject property is essential, actual manual possession is not necessary.

It is sufficient if a defendant has constructive possession, that [it] has such control over

the property that he may deliver the possession of it.” Bush v. Belenke, 381 So. 2d 315,

316 (Fla. 3d DCA 1980) (emphasis added) (citations omitted). As we undertake our de

novo review, we cannot determine from Hemlock’s affidavit any evidentiary basis for his

statement that Appellee does not have Appellant’s items and does not know where they




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for and obtained summary judgment despite Appellant’s opposition. Appellant timely

appealed the final summary judgment.1

                                    Summary Judgment

       When moving for summary judgment, Appellee first argued in its motion and stated

in the affidavit of Mr. Hemlock, its manager, that it properly obtained the writ of possession

pursuant to section 83.62, which is titled and concerns, “Restoration of possession to

landlord.” The trial court considered that argument and relied upon section 83.62 as one

basis for granting summary judgment in favor of Appellee. The parties agree that there

was no landlord-tenant relationship between them. Thus, the trial court erred when it

concluded, as Appellee requested, that the section 83.62 writ of possession was properly

issued in favor of Appellee, permitting Appellant’s eviction and the removal of her

personal property.

       The trial court also adopted Appellee’s second argument as a basis for granting

summary judgment, namely that section 83.62 immunized Appellee from any suit for

replevin or damages concerning personal property removed from the house. However,

that statute provides immunity only in favor of three potential defendants: the sheriff, the

landlord, or the landlord’s agent. Given the absence of any landlord-tenant relationship,

Appellee was not the landlord or the landlord’s agent, and certainly was not the sheriff.



       1  Appellant attempts to raise certain arguments here regarding the alleged
impropriety of foreclosing the Culley mortgage without naming her as a party to the action.
Appellant further argues that Appellee’s application for the writ of possession was based
upon misstatements of fact, namely that there were no tenants in the house, or, in the
alternative, that the tenants were given proper notice of the need to vacate. However,
those specific issues are not properly before the court in this appeal. Additionally, even
though Appellant challenged the court's issuance of the writ on the aforementioned
grounds, she did not appeal the order denying her motion to quash the writ.



                                              4
Because section 83.62 immunity cannot shield Appellee here, it was error for the trial

court to use that as a basis for granting final summary judgment.

       Appellee’s third summary judgment argument, that Appellant’s personal property

was properly removed from the house and placed at or near the property line refers to

language in section 83.62. This legal argument was supported by an affidavit from

Appellee’s manager saying in conclusory fashion that “all personal property was removed

from the premises and placed to or near the property line.” However, in addition to the

inapplicability of that statute to this case, Appellant factually disputed the assertion that

her property had been so removed. In terms equally as conclusory in nature as those

employed by Appellee, she stated in her opposing affidavit that Appellee “did not remove

[her] household goods and belongings to the sidewalk near the property line.” Needless

to say, where the personal property was placed and who removed it from the property are

genuine issues of fact that need to be resolved either by further evidence or by the trier

of fact.

       Appellee’s fourth argument, that it did not possess any of Appellant’s personal

property, would be a valid defense to a claim for replevin, if it had been properly supported

by admissible record evidence.       In a replevin action, “although possession by the

defendant of the subject property is essential, actual manual possession is not necessary.

It is sufficient if a defendant has constructive possession, that [it] has such control over

the property that he may deliver the possession of it.” Bush v. Belenke, 381 So. 2d 315,

316 (Fla. 3d DCA 1980) (emphasis added) (citations omitted). As we undertake our de

novo review, we cannot determine from Hemlock’s affidavit any evidentiary basis for his

statement that Appellee does not have Appellant’s items and does not know where they




                                             5
are. “Pursuant to Florida Rule of Civil Procedure 1.510(e), affidavits made in support of

summary judgment ‘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.”’ Johns v. Daniels, 186 So. 3d 620, 621 (Fla. 5th

DCA 2016) (quoting Fla. R. Civ. P. 1.510(e)). The oft-repeated statement that the witness

has personal knowledge of the matters set forth in his/her affidavit, standing alone, is

insufficient. “A factual predicate for the [affidavit] testimony is required, just as it would

be required at trial.” Id.

                                         Conclusion

       For the reasons set forth above, we find that the trial court erred in granting

summary judgment. We reverse the final summary judgment and remand for further

proceedings in accord with this opinion.

       REVERSED AND REMANDED.



SAWAYA and TORPY, JJ., concur.




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