Wednesday, December 15, 2010

"Knowledge and Belief" Is Insufficient For Consideration At Summary Judgment Hearing

In Ballinger v. Bay Gulf Credit Union (2D09-4561), the Second District reversed a final judgment based upon the contents of the verified complaint.  Interestingly, the court found "no error in two of the issues raised by" the appellant.  However, concluded that "we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered."

In "verified complaint, a Bay Gulf employee....stated that [she] read everything and that the facts stated were "true to the best of my knowledge and belief."  The court stated:
We acknowledge that "[a] verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment."...."However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits."....In this case, the verification reflects it was not based on Lenth's personal knowledge.  Bay Gulf asks this court to construe the verification as if it were based on Lenth's personal knowledge because the verification does not say it was based on Lenth's "information and belief" but, rather, states it was based on Lenth's "knowledge and belief."  However, we decline to impose such a construction because the fact that the verification included the word "belief" indicates it was not based on Lenth's personal knowledge.  And, in fact, it is apparent from the record that Lenth could not state she had personal knowledge of the loan documents in question.  The qualified verification here fails to meet the requirements of rule 1.510(e) and, therefore, should not have been considered by the trial court on a motion for summary judgment.  


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