The Seemingly "Magical Aura" of Exhibits When Attached to a Pleading Under the Florida Rules of Civil Procedure.

• Author: Muniz, H. Michael

No doubt that Florida litigators, from time to time, find themselves moving for summary judgment pursuant to Fla. R. Civ. P. 1.510, particularly when prosecuting a contract-based action and other times defending a motion for summary judgment. The summary judgment movant will necessarily argue to the trial court that the standard for summary judgment has been satisfied. The current rule expressly provides "the judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (1) A material, potentially dispositive question that may arise in the summary judgment context is whether an exhibit attached to the movant's pleading must also be authenticated to be considered and relied upon by the trial court in reaching its decision.

To answer this question, one should consider 1) the plain meaning of the applicable rules of civil procedure; 2) the proper manner of interpreting the rules; 3) how to apply the rules of construction to interpret the rules; 4) the applicable Florida common law jurisprudence; and 5) the Florida Evidence Code.

The Florida Rules of Civil Procedure

Fla. R. Civ. P. 1.100(a) expressly provides for and defines four types or classes of pleadings that are permitted: 1) a complaint, 2) a petition, 3) an answer, and 4) a reply. (2) Rule 1.130(a) prescribes that all bonds, notes, bills of exchange, contracts, accounts, or documents (3) (or copies thereof) upon which action may be brought or defense made must be incorporated in or attached to the pleading. (4) In other words, an instrument that provides for a claim or cause of action must be attached to a complaint, whereas an instrument that provides an affirmative defense must be attached to an answer and an instrument that provides an avoidance to an affirmative defense must be attached to a reply. (5) The second part of Rule 1.130(b) expressly provides that any exhibit attached to a pleading must be considered a part thereof for all purposes. (6)

Florida Rule of Civil Procedure 1.130 provides that a written contract or document that forms the basis of a claim for relief shall be attached to or incorporated in the pleading and any exhibit that is attached to the pleading is considered a part of that pleading. (7) The purpose of this rule "is to apprise the defendant of the nature and extent of the cause of action so that he may plead with greater certainty." Sachse v. Tampa Music Co., 262 So. 2d 17, 19 (Fla. 2d DCA 1972). (8)

And the particular parts of the rules concerning motions for summary judgment provide:

(c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued (9) and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions and other materials as would be admissible in evidence ("summary judgment evidence") on which the movant relies.... The adverse party shall identify.any summary judgment evidence on which the adverse party relies.... The judgment sought shall be rendered forthwith if the pleadings and the summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (10)

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supple mented or opposed by depositions, answers to interrogatories, or by further affidavits. (11)

With the relevant portions of the rules in plain view, the proper manner of interpreting these rules should be considered.

Construction and Interpretation of the Florida Rules of Civil Procedure

To begin with, the Florida Rules of Civil Procedure were adopted for utilization in Florida state trial courts by the Florida Supreme Court, which rules carry the force of law. (12) Accordingly, the rules of civil procedure are mandatory in civil court proceedings, (13) and it is not subject to dispute that Florida state court civil lawsuits are governed by the Florida Rules of Civil Procedure. (14)

Florida does not allow such discretion on the part of the trial courts to ignore the Rules of Evidence or the Rules of Civil Procedure. Failure to follow the [r]ules constitutes an error of law, not an abuse of discretion. While the application of the [r]ules to a particular fact pattern may require the use of discretion, the interpretation of the [r]ules does not. (15)

Florida courts have also consistently held that the rules of civil procedure are considered in pari materia. (16) The doctrine in pari materia is a principle of statutory (and rule) construction that requires statutes (and rules) relating to the same subject to be construed together to harmonize the statutes (and rules). (17) Another principle of statutory (or rule) construction, expressio unius est exclusio alterius, means that in construing a statute (or rule), the expression of one thing implies the exclusion of another. (18) As Calabro v. State, 995 So. 2d 307 (Fla. 2008), informs:

This [c]ourt has held from time immemorial that we must primarily determine the effect and purpose of statutes and rules of court by first examining the actual words used in the statute or rule and determine the plain meaning of those words. Cf. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (citing A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). Assuming that the plain meaning of the words used can be determined, we are bound to apply that plain meaning to resolve legal disputes that involve application of the statute or rule. Hence, courts are initially bound to apply the terms of [the rule] according to the plain meaning of those terms. (19)

Thus, if the language is clear and unambiguous, there is no need to engage in statutory (or rule) construction, and the statute (or rule) should be given its plain and obvious meaning. (20)

Accordingly, unless Rules 1.130(b), 1.510(c), and 1.510(e) can reasonably be deemed ambiguous, their plain meaning controls. Ambiguity is defined as the condition of admitting more than one meaning. (21) It does not appear that either Rule 1.130 or Rule 1.510 is ambiguous, since the rules do not appear susceptible to more than one meaning. It is also evident that Rule 1.510 controls motions for summary judgment, so in the event of any conflict between Rule 1.510 and Rule 1.130(b), the specific rule on summary judgment would control over the general rule concerning exhibits attached to pleadings. (22) Regardless, there does not appear to be any conflict between Rule 1.510 and Rule 1.130(b), particularly because Rule 1.510 expressly incorporates pleadings upon which Rule 1.130(b) is grounded insofar as exhibits attached to a pleading. (23)

Thus, the controlling legal principles to be applied provide that the Florida Rules of Civil Procedure 1) carry the force of law; 2) are mandatory in Florida state court civil proceedings; 3) are generally considered in pari materia; 4) are interpreted according to their plain meaning; and 5) are not ambiguous.

Interpretation of the Applicable Rules

To interpret the applicable rules, one must begin by bringing together the most relevant parts of the rules implicated--Rules 1.130(b), 1.510(c), and 1.510(e). Plainly stated, any exhibit attached to a pleading shall be considered a part thereof for all purposes. (24) There is no mistaking the plain meaning of Rule 1.130(b) because there are no exceptions, qualifiers, contingencies, or otherwise stated in the rule. Nor does the rule say anything about authentication of exhibits attached to a pleading.

Upon a motion for summary judgment, the judgment sought shall be rendered forthwith if the pleadings and the summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (25) The doctrine of in pari materia certainly seems to...