Third District Court of Appeal
                                State of Florida

                             Opinion filed May 9, 2018.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                 No. 3D17-677
                          Lower Tribunal No. 13-16209
                              ________________

                    Suresh Gidwani and Bina Gidwani,
                                    Appellants,

                                         vs.

                   Sherry Roberts and Alice Randolph,
                                     Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.

      Arnold R. Ginsberg, P.A., and Arnold R. Ginsberg, for appellants.

      Pathman Lewis, LLP, and Peter L. Meltzer and John A. Moore, for
appellees.

Before SUAREZ, LAGOA, and LINDSEY, JJ.


      LAGOA, J.


      Appellants, Suresh Gidwani and Bina Gidwani (collectively “Appellants”),

appeal from a final summary judgment as to liability, as well as a final judgment
awarding both damages and attorneys’ fees, entered in favor of Appellees, Sherry

Roberts (“Roberts”) and Alice Randolph (collectively “Appellees”).        Because

genuine issues of material fact exist as to who owns the parking spaces numbered

410 and 411, we reverse the final summary judgment as to liability entered in favor

of Appellees.     We further reverse the final judgment awarding damages and

attorneys’ fees in favor of Appellees.

I.    FACTUAL AND PROCEDURAL BACKGROUND

      On July 29, 1998, Appellees purchased a penthouse condominium unit

(“Unit PH-2”) at the Decoplage Condominium (the “Decoplage”) in Miami Beach

from John Fries (“Fries”). Fries originally purchased Unit PH-2 in 1994 from the

Decoplage’s developer, which assigned parking spaces numbered 410 and 411 (the

“Decoplage Spaces”) to Fries with the unit. That assignment was memorialized by

a written instrument (the “Decoplage Assignment”), which provided that the

Decoplage Spaces were for the “exclusive use of the Unit PH-2.” Appellees

testified that Fries orally assigned the Decoplage Spaces to them with their

purchase of Unit PH-2, which they had used uninterrupted for thirteen years, but

that they were unable to contemporaneously record the assignment due to the

condominium developer’s policies. In April 1999, the Decoplage amended its

Declaration of Condominium to require unit owners to record their assignments of

parking spaces.    It was not until March 28, 2011, that Appellees recorded a



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certificate, prepared by Roberts, evidencing the assignment of the Decoplage

Spaces to them from Fries in the Official Public Records of Miami-Dade County.

      On March 29, 2011, Appellants finalized their purchase of a Decoplage

condominium unit (“Unit 1033”) from Dorian A. Vergos (“Vergos”), which was

evidenced by a warranty deed recorded in the Official Public Records of Miami-

Dade County on April 12, 2011. Subsequently, Appellants received an “approval”

from the Decoplage that referenced the Decoplage Spaces as being assigned to

Unit 1033. The Decoplage’s corporate representative testified, and a letter from

the Decoplage’s counsel stated, however, that this “approval” only pertained to

unit purchases and neither approved nor disapproved parking space assignments.

The corporate representative also testified that the Decoplage does not

independently verify parking space assignments, but instead relies upon

information provided by the unit owners. This “approval” was the only record

evidence suggesting Appellants were assigned the Decoplage Spaces, as

Appellants’ Purchase and Sale Agreement for Unit 1033 did not reference the

Decoplage Spaces. Moreover, Appellants never met or spoke with Vergos and

thus was unaware of whether Vergos ever had the right to the Decoplage Spaces.

      After Appellants’ purchase of Unit 1033, a dispute commenced over the

assignment of the Decoplage Spaces.     Initially, Appellants received a remote

transmitter that allowed them to enter the Decoplage’s parking garage, but the



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Decoplage temporarily revoked their access for a five-month period.             The

Decoplage subsequently informed the parties that they would need to resolve their

ownership claims of the Decoplage Spaces through litigation.

       On May 6, 2013, Appellees filed a complaint against Appellants seeking

declaratory relief, injunctive action, and damages resulting from Appellants’ rental

of the Decoplage Spaces to third parties. Following discovery, Appellees moved

for summary judgment on the issue of whether Appellants were liable on all counts

alleged in their complaint. Appellees filed a sworn affidavit from Roberts with

exhibits.   In her affidavit, Roberts attested that Fries had orally assigned the

Decoplage Spaces with the purchase of Unit PH-2 and that Fries had also provided

an undated letter (the “Fries Letter”) confirming the assignment to Appellees. The

Fries Letter was an exhibit to Roberts’ affidavit. The Fries Letter, however, was

not created contemporaneously with Appellees’ purchase of Unit PH-2, but instead

purportedly signed by Fries when Appellees found him, by chance, at a Starbucks

on Miami Beach after litigation began. Fries was not deposed nor did he file an

affidavit attesting to the veracity of the letter.

       In their Response and Memorandum of Law in Opposition to the Motion for

Summary Judgment, Appellants argued that Appellees failed to satisfy their burden

of proving that no genuine issues of material fact existed in the case. First,

Appellants argued that the records of the condominium association produced and



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authenticated by Decoplage’s designated corporate representative and member of

board of directors at his deposition contradicted Appellees’ claim.        Second,

Appellees argued that the Fries Letter attached as Exhibit A to the Roberts’s

affidavit was “not certified, notarized, verified or authenticated in any admissible

manner.”

       Following a hearing, the trial court granted Appellees’ summary judgment

motion, and entered a final judgment for damages and attorneys’ fees in favor of

Appellees, which was later amended on March 2, 2017. Appellants filed this

timely appeal.

II.    STANDARD OF REVIEW

       We review de novo an order granting summary judgment. Tropical Glass &

Constr. Co. v. Gitlin, 

, 158 (Fla. 3d DCA 2009). In reviewing a

summary judgment, this Court must consider the evidence in the light most

favorable to the non-moving party and if the slightest doubt exists, summary

judgment must be reversed. 

       On appeal, Appellants argue that because the record does not conclusively

demonstrate that Appellees own the rights to use the Decoplage Spaces, the trial

court erred in granting summary judgment as genuine issues of material fact exist

regarding who owns the parking spaces. We agree.



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      As a general principle, a “‘motion for summary judgment is not a substitute

for a trial on the merits.’” Redland Ins. Co. v. Cem Site Constructors, Inc., 

1259, 1261 (Fla. 2d DCA 2012) (quoting Hervey v. Alfonso, 

,

646 (Fla. 2d DCA 1995)). “‘Summary judgment is appropriate only where there is

no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.’” Estoril Inc. v. Mayfield Condo. Ass’n, Inc., 

, 388

(Fla. 3d DCA 2013) (quoiting MGM Constr. Servs. Corp. v. Travelers Cas. & Sur.

Co. of Am., 

, 885 (Fla. 3d DCA 2011)). In evaluating whether

summary judgment is appropriate, the trial court must determine whether the

record evidence conclusively demonstrates that the moving party proved no

genuine issues of material fact exist, i.e., “to ‘establish irrefutably that the

nonmoving party cannot prevail were a trial to be held.’” Redland, 

at

1261 (emphasis in original) (quoting Land Dev. Servs., Inc. v. Gulf View

Townhomes, LLC, 

, 868 (Fla. 2d DCA 2011)); accord 

. If the slightest doubt exists as to a genuine issue of material fact,

the summary judgment must be reversed. Alvarez-Mejia v. Bellissimo Props.,

LLC, 

, 799 (Fla. 3d DCA 2016); Daneri v. BCRE Brickell, LLC, 

, 93-94 (Fla. 3d DCA 2012)). Once the movant produces competent

evidence in support of summary judgment, “the opposing party must come forward

with counterevidence sufficient to reveal a genuine issue” of material fact.



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Landers v. Milton, 

, 370 (Fla. 1979); accord Valderrama v.

Portfolio Recovery Assocs., Inc., 

, 239 (Fla. 3d DCA 2007). On

summary judgment, the trial court “may neither adjudge the credibility of the

witnesses nor weigh the evidence.” Sierra v. Shevin, 

, 525 (Fla. 3d

DCA 2000).

      In support of their motion for summary judgment, Appellees identified the

following evidence1 as conclusively establishing their right to use the Decoplage

Spaces: 1) Appellees’ testimony that Fries orally assigned the Decoplage Spaces to

them with their purchase of Unit PH-2; 2) the Decoplage Assignment; 3) the

unauthenticated Fries Letter; 4) Appellees’ certificate recording the assignment of

the Decoplage Spaces; 5) Appellants’ recorded warranty deed and Decoplage

“approval”; 6) the Decoplage’s letter stating it did not approve parking space

assignments; 7) Appellants’ Purchase and Sale Agreement for Unit 1033; and 8)

portions of Appellants’ and the Decoplage’s representative’s depositions.

1 Appellees urge us to take judicial notice of an amendment to the Decoplage’s
Declaration of Condominium in the public records of Miami-Dade County
requiring the Decoplage’s unit owners to record their assignments of parking
spaces. This amendment, however, was never introduced into evidence below and
is thus not in the record. See Bull v. Jacksonville Fed. Sav. & Loan Ass’n, 

755, 756 (Fla. 1st DCA 1991). Before a court may take judicial notice, “a court
must ‘afford each party reasonable opportunity to present information relevant to
the propriety of taking judicial notice and to the nature of the matter noticed.’”
Rodriguez v. Philip, 

, 442 (Fla. 3d DCA 1982) (quoting § 90.204,
Fla. Stat. (1979)). Because Appellees did not follow these proper steps in
requesting that the trial court take judicial notice of the amendment, we are unable
to do so.

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Appellees argue that this evidence conclusively proved that they were assigned the

Decoplage Spaces by Fries and that Appellants failure to introduce a counter-

affidavit or counter-evidence to the contrary revealing the existence of a genuine

issue of fact supports affirmance of the trial court’s order.

        While it is true that an opposing party must go beyond merely asserting

that an issue exists to defeat summary judgment, 

, the

non-movant party has no obligation to file a counter-affidavit or counterevidence if

the moving party has failed to meet their initial burden of proving the absence of

any genuine issues of material fact. Deehl v. Sparks Constr. Co., 

,

607 (Fla. 3d DCA 1966) (“The burden of showing absence of any genuine issue is

on the moving party for summary judgment, and the burden of proving the

existence of such issue is not shifted to the opposing party until the movant has

successfully met such burden.”).

      We find that Appellees failed to meet their initial burden.         The only

evidence that purportedly established a transfer of the Decoplage Spaces to

Appellees was the Fries Letter. However, as the Appellants argued below and on

appeal, the Fries Letter purporting to evidence the assignment of the Decoplage

Spaces to Appellees was not competent evidence as it was not properly

authenticated. See Bryson v. Branch Banking & Tr. Co., 

, 786 (Fla.

2nd DCA 2011) (holding that “unauthenticated copies of default letters . . . were



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insufficient for summary judgment purposes because only competent evidence

may be considered in ruling on a motion for summary judgment.”); Booker v.

Sarasota, Inc., 

, 889 (Fla. 1st DCA 1998) (“A Florida court may not

consider an unauthenticated document in ruling on a motion for summary

judgment, even where it appears that the such document, if properly authenticated,

may have been dispositive.”).      A party cannot simply attach unsworn or

unauthenticated documents to a motion for summary judgment and satisfy the

procedural requirements of Florida Rule of Civil Procedure 1.510(e). See Freiday

v. OneWest Bank, 

, 87 (Fla. 4th DCA 2014).            Because “only

competent evidence may be considered by the court in ruling upon a motion for

summary judgment,” a document attached to a motion for summary judgment or a

document attached to an affidavit that is not otherwise authenticated is not

competent evidence. Daeda v. Blue Cross & Blue Shield of Fla., Inc., 

, 618 (Fla. 2d DCA 1997).

IV.   CONCLUSION

      Because genuine issues of material fact exist as to who owns the Decoplage

Spaces, we reverse the trial court’s final summary judgment order in favor of

Appellees and further reverse the subsequent amended final order awarding

damages and attorneys’ fees.

      Reversed and remanded for further proceedings.



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