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Filing # 189099859 E-Filed 01/04/2024 02:05:01 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
KSD PARTNERS, LLC, an
Ohio limited liability company,
Plaintiff,
vs. CASE: 2023-002230-
PUNTA GORDA HEALTH
INVESTORS, LLC, a Florida limited
liability company and FILEMAN LAW
FIRM, P.A., a Florida corporation, as escrow agent
Defendant. /
MOTION TO STRIKE PORTIONS OF THE “AFFIDAVIT OF PROOF OF THE
DEFENDANT, FILED IN OPPOSITION OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGEMENT
COMES NOW Plaintiff, KSD PARTNERS, LLC by and through its undersigned
counsel moves this Honorable Court to strike aragraph three (3), paragraph four (4) and paragraph
five (5) of the “Affidavit of Proof” of Defendant filed on November 10, 2023 and as grounds in
support of such motion states as follows:
Defendant filed an “Affidavit of Proof” dated November 10, 2023.
The Defendant’s Affidavit of Proof contains objectionable and inadmissible
statements set forth in paragraph three (3), paragraph four (4) and paragraph five (5).
Paragraphs 3 states in the third sentence the following:
That letter was sent exactly as provided in paragraph 21 of the Contract with
notice to seller at the address referenced therein and copy to Mr. Irwin Frank
at the address referenced therein.”
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This statement makes the assumptions of fact by Defendant and conclusions of law which are not
appropriate for an affidavit and which, as indicated in the pleadings and in part in the affidavit, are
patently false.
Paragraph four (4) states in part: As can be seen in the letter from the Plaintiff
of May 18, 2022 rather than May 18, 2022. The only state reason for an alleged rejection of
my termination was that somehow it was untimely. As has been pointed out and as has now
been evidently agreed to by the Plaintiff, the notice was timely provided pursuant to the terms
of the Contract.”
Again this is not on personal knowledge but rather a statement of the
understanding of the issue and personal opinion of the issues by the affiant, which as set forth by
the case law cited further below, is improper and cannot be used in an affidavit as to a summary
judgment.
Further, the very statements in paragraph three (3), sentence three (3) and sentence
four (4) are directly refuted by the attachment to the affidavit, the letter of Irwin Frank of May
18, 2023, which clearly and unambiguously in the very first paragraph in the letter indicates that
the claimed termination of the letter s not made by the actual Purchaser as re red by the
Contract
As a matter of law, paragraph three (3) and paragraph four (4) should be stricken
and as can be seen is wholly refuted by the attachments to the affidavit and the undisputed facts
in this case.
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The objectionable provisions in paragraph five (5) appear throughout the
statement and such statement clearly is not from personal knowledge but rather is based upon
affiant's "understanding” of the underlying issues and h “opinion of such issues" which
renders the statement inadmissible Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA
The statements identified and as appear in paragraphs in paragraph three (3), four
(4) and five (5) of law are wholly improper, not admissible and not able to be advanced in an
affidavit in opposition to a Motion for Summary Judgment.
Florida law is clear on what can and cannot be contained in an Affidavit in support
or in opposition of a summary Judgment. The Second DCA is explicit on this requirement:
“Supporting affidavits are required to comply with three "musts." The affidavit:
1. "must be made on personal knowledge";
2. "must set forth such facts as would be admissible in evidence"; and
"must show affirmatively that the affiant competent testify the matters
stated therein."
Rule (c)(1)(B)(4) (emphasis added); see also Keys Country Resort, 272 So.
3d at 504. "When a supporting affidavit does not comply with these requirements,
legally insufficient support the entry of summary judgment favor of the
moving party." Enter. Leasing Co. v. Demartino, 15 So. 3d 711, 714 (Fla. DCA
2009). Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So. 3d 560, 563 (2 DCA 2020)
The Second DCA in Rodriguez went on to state:
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“An affidavit in support of summary judgment may not be based on factual
conclusions or conclusions of law." Fla. Dep't of Fin. Servs. v. Associated Indus.
Ins., 868 So. 2d 600, 602 (Fla. 1st DCA 2004) (reversing summary judgment
where trial court relied on insufficient affidavit that contained statements not
based upon affiant's personal knowledge but on her " 'understanding' of the
underlying issues and her 'opinion' of such issues"); see also Johns v. Dannels,
186 So. 3d 620, 622 (Fla. 5th DCA 2016) (reversing summary judgment where
"the affidavit failed to provide any predicate to show how appellee was aware of
the asserted facts, which are set forth as 1As one example, paragraph fifty-four
states, in part: "Clearly, any legitimate contractor, who actually believed that it
was necessary to check each and every electrical outlet in the entire house, would
already have a megohmmeter." - 7 - mere conclusions"). "A factual predicate
for the testimony is required, just as it would be required at trial." Johns, 186 So.
3d at 622”.
Florida R. Civ. P. 1.510(e) requires that affidavits must
be based upon personal knowledge and shall "show affirmatively that the
affiant is competent to testify to the matters stated therein." A
complaint based on "information and belief" and not personal knowledge, is
insufficient. . Here, the complaint was
not based upon personal knowledge and was insufficient to meet the
requirements of the rule” Colon Morgan Chase Bank, N.A., 162 So. 3d
195, 199 (5DCA 2015)
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WHEREFORE Plaintiff, KSD PARTNERS, LLC respectfully request this Honorable
Court strike the cited provisions in paragraph three (3), paragraph four (4) and paragraph five (5
of the affidavit of Defendant in opposition to the summary judgment of Plaintiff and that this Court
disregard such objectionable affidavit statements.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a true and correct copy of the foregoing was served via the e-filing
portal to all counsel of record this day of January
LAW OFFICE OF JURSINSKI & MURPHY, PLLC
15701 S. Tamiami Trail
Fort Myers, Florida 33908
Tel: (239) 337-1147
Fax: (239) 337-5364
By: /s/ Kevin F. Jursinski
Kevin F. Jursinski, Esq.
Florida Bar No.: 318851
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Preview
Filing # 189099859 E-Filed 01/04/2024 02:05:01 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA KSD PARTNERS, LLC, an Ohio limited liability company, Plaintiff, vs. CASE: 2023-002230- PUNTA GORDA HEALTH INVESTORS, LLC, a Florida limited liability company and FILEMAN LAW FIRM, P.A., a Florida corporation, as escrow agent Defendant. / MOTION TO STRIKE PORTIONS OF THE “AFFIDAVIT OF PROOF OF THE DEFENDANT, FILED IN OPPOSITION OF PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT COMES NOW Plaintiff, KSD PARTNERS, LLC by and through its undersigned counsel moves this Honorable Court to strike aragraph three (3), paragraph four (4) and paragraph five (5) of the “Affidavit of Proof” of Defendant filed on November 10, 2023 and as grounds in support of such motion states as follows: Defendant filed an “Affidavit of Proof” dated November 10, 2023. The Defendant’s Affidavit of Proof contains objectionable and inadmissible statements set forth in paragraph three (3), paragraph four (4) and paragraph five (5). Paragraphs 3 states in the third sentence the following: That letter was sent exactly as provided in paragraph 21 of the Contract with notice to seller at the address referenced therein and copy to Mr. Irwin Frank at the address referenced therein.” Page of This statement makes the assumptions of fact by Defendant and conclusions of law which are not appropriate for an affidavit and which, as indicated in the pleadings and in part in the affidavit, are patently false. Paragraph four (4) states in part: As can be seen in the letter from the Plaintiff of May 18, 2022 rather than May 18, 2022. The only state reason for an alleged rejection of my termination was that somehow it was untimely. As has been pointed out and as has now been evidently agreed to by the Plaintiff, the notice was timely provided pursuant to the terms of the Contract.” Again this is not on personal knowledge but rather a statement of the understanding of the issue and personal opinion of the issues by the affiant, which as set forth by the case law cited further below, is improper and cannot be used in an affidavit as to a summary judgment. Further, the very statements in paragraph three (3), sentence three (3) and sentence four (4) are directly refuted by the attachment to the affidavit, the letter of Irwin Frank of May 18, 2023, which clearly and unambiguously in the very first paragraph in the letter indicates that the claimed termination of the letter s not made by the actual Purchaser as re red by the Contract As a matter of law, paragraph three (3) and paragraph four (4) should be stricken and as can be seen is wholly refuted by the attachments to the affidavit and the undisputed facts in this case. Page of The objectionable provisions in paragraph five (5) appear throughout the statement and such statement clearly is not from personal knowledge but rather is based upon affiant's "understanding” of the underlying issues and h “opinion of such issues" which renders the statement inadmissible Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA The statements identified and as appear in paragraphs in paragraph three (3), four (4) and five (5) of law are wholly improper, not admissible and not able to be advanced in an affidavit in opposition to a Motion for Summary Judgment. Florida law is clear on what can and cannot be contained in an Affidavit in support or in opposition of a summary Judgment. The Second DCA is explicit on this requirement: “Supporting affidavits are required to comply with three "musts." The affidavit: 1. "must be made on personal knowledge"; 2. "must set forth such facts as would be admissible in evidence"; and "must show affirmatively that the affiant competent testify the matters stated therein." Rule (c)(1)(B)(4) (emphasis added); see also Keys Country Resort, 272 So. 3d at 504. "When a supporting affidavit does not comply with these requirements, legally insufficient support the entry of summary judgment favor of the moving party." Enter. Leasing Co. v. Demartino, 15 So. 3d 711, 714 (Fla. DCA 2009). Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So. 3d 560, 563 (2 DCA 2020) The Second DCA in Rodriguez went on to state: Page of “An affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law." Fla. Dep't of Fin. Servs. v. Associated Indus. Ins., 868 So. 2d 600, 602 (Fla. 1st DCA 2004) (reversing summary judgment where trial court relied on insufficient affidavit that contained statements not based upon affiant's personal knowledge but on her " 'understanding' of the underlying issues and her 'opinion' of such issues"); see also Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA 2016) (reversing summary judgment where "the affidavit failed to provide any predicate to show how appellee was aware of the asserted facts, which are set forth as 1As one example, paragraph fifty-four states, in part: "Clearly, any legitimate contractor, who actually believed that it was necessary to check each and every electrical outlet in the entire house, would already have a megohmmeter." - 7 - mere conclusions"). "A factual predicate for the testimony is required, just as it would be required at trial." Johns, 186 So. 3d at 622”. Florida R. Civ. P. 1.510(e) requires that affidavits must be based upon personal knowledge and shall "show affirmatively that the affiant is competent to testify to the matters stated therein." A complaint based on "information and belief" and not personal knowledge, is insufficient. . Here, the complaint was not based upon personal knowledge and was insufficient to meet the requirements of the rule” Colon Morgan Chase Bank, N.A., 162 So. 3d 195, 199 (5DCA 2015) Page of WHEREFORE Plaintiff, KSD PARTNERS, LLC respectfully request this Honorable Court strike the cited provisions in paragraph three (3), paragraph four (4) and paragraph five (5 of the affidavit of Defendant in opposition to the summary judgment of Plaintiff and that this Court disregard such objectionable affidavit statements. CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing was served via the e-filing portal to all counsel of record this day of January LAW OFFICE OF JURSINSKI & MURPHY, PLLC 15701 S. Tamiami Trail Fort Myers, Florida 33908 Tel: (239) 337-1147 Fax: (239) 337-5364 By: /s/ Kevin F. Jursinski Kevin F. Jursinski, Esq. Florida Bar No.: 318851 Page of