DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CUSTOM DESIGN EXPO, INC., a Florida corporation, and 

YOGMATIE SINGH,

Appellants,

v.

SYNERGY RENTS, INC., a Florida limited liability company, and 

F.I.R.E. RESOURCES, INC., a Florida corporation,

Appellees.

No. 2D20-1316

September 10, 2021

Appeal from the Circuit Court for Polk County; John Radabaugh, 

Judge.

Marc D. Peltzman of Law Office of Marc D. Peltzman, P.A., Orlando, 

for Appellants. 

Brian A. Leung, Victor W. Holcomb, and Steven R. DiOssi of 

Holcomb & Leung, P.A., Tampa, for Appellee Synergy Rents, Inc.

No appearance for Appellee F.I.R.E. Resources, Inc.

SLEET, Judge.
2

Custom Design Expo, Inc., and its principal Yogmatie Singh 

challenge the trial court's final summary judgment entered against 

them and in favor of Synergy Rents, Inc., in Synergy's action for 

breach of contract and open account filed against them.1 Because 

the affidavit in opposition to Synergy's summary judgment motion 

was insufficient to establish a genuine issue of material fact, we 

affirm. 

Custom Design is a contractor that was hired by F.I.R.E. 

Resources, Inc., to clear, grade, and prepare undeveloped lots for 

vertical development. Custom Design contracted with Synergy to 

rent construction equipment for that job. In its complaint below, 

Synergy alleged that it had a contract with Custom Design for the 

rental of construction equipment on open account, that Custom 

Design failed to pay all amounts due and owing on the contract, 

that Singh signed a personal guaranty to be personally liable for 

amounts due pursuant to the contract, and that $81,875.43 due on 

the contract remained unpaid. 

1 Appellee F.I.R.E. Resources, Inc., was named as a defendant 

below in a separate count for construction lien but makes no 

appearance in this appeal.
3

Custom Design and Singh filed an answer to the complaint, 

and Synergy subsequently moved for summary judgment on only 

the counts brought against them. 

In support of the motion, Synergy filed with the trial court the 

affidavit of its credit manager, Lynn Idleman, in which she averred 

that Custom Design had executed a written application for credit 

with Synergy for the purpose of renting service equipment on open 

account and that the application contained a personal guaranty on 

the debt signed by Singh. A copy of the application, including the 

personal guaranty with Singh's signature, was attached to the 

affidavit. The credit application also included language that 

indicated that the application was a contract and that in exchange 

for the extension of credit, the applicant agreed to make payment 

pursuant to the terms of the agreement. Idleman stated in the 

affidavit that Custom Design rented equipment pursuant to the 

credit application contract, "fail[ed] and/or refus[ed] to pay for the 

rental equipment" in full, and owed Synergy the unpaid amount of 

$81,875.43 plus prejudgment interest. Copies of twenty-two 

invoices supporting that amount were also attached to the affidavit, 
4

and Idleman averred that they were "true and correct copies of the 

outstanding invoices."

The only evidence filed in opposition to the summary judgment 

motion was the affidavit of F.I.R.E. president Shane Merali.2 In that 

affidavit, Merali stated the following:

5. F.I.R.E. RESOURCES, INC. takes issue with 3 invoices 

presented in Plaintiff's Motion for Summary Judgment 

2

 In its answer brief before this court, Synergy points out that 

"[t]he affidavit was filed not by Custom Design and Singh but by 

Shane Merali, who is not a party to the case and is the President of 

the property owner, F.I.R.E." We first note that Synergy is incorrect 

in its contention that the affidavit was filed with the court by Merali 

individually. The notice of filing attached to Merali's affidavit 

stated, "Defendant, F.I.R.E. Resources, Inc., by and through 

undersigned counsel hereby files the attached Affidavit of Shane 

Merali in connection with the Motion [for] Summary Judgment 

currently scheduled for hearing." As such, the affidavit was filed on 

behalf of F.I.R.E., which—contrary to Synergy's assertion—was a 

party defendant to the action below as count one of Synergy's 

amended complaint was a count for construction lien against 

defendant F.I.R.E. as the owner of the property. 

Furthermore, F.I.R.E. had standing to oppose the motion 

seeking summary judgment against its codefendants because the 

construction lien count against F.I.R.E was based on the breach of 

contract and open account allegations against Custom Design and 

Singh. Cf. Crowell v. Kaufmann, 845 So. 2d 325, 327 (Fla. 2d DCA 

2003) ("[T]he summary judgment in favor of [Dr. Crowell's 

codefendant] Dr. Kaufmann exonerates [Dr. Kaufmann] from fault. 

Because the trial court determined as a matter of law that Dr. 

Kaufmann was not at fault, Dr. Crowell would not have been 

entitled to place him on the verdict form [as a defendant pursuant 

to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993)]. Accordingly, Dr. 

Crowell had standing to oppose Dr. Kaufmann's motion for 

summary judgment . . . ." (citations omitted)).
5

and supporting affidavit. The first disputed invoice is 

#5008-0010. This invoice is in the amount of $4,931.26, 

for a 2 week rental period. The rental period, however, 

for this equipment was supposed to be 1 week. This 

invoice therefore represents an overcharge of at least 

$2,465.00, plus the interest accrued on the overcharge.

6. The second disputed invoice is #5111-0006. This 

invoice is in the amount of $3,116.25, for a 2 week rental 

period. The rental period, however, for this equipment 

was supposed to be 1 week. This invoice therefore 

represents an overcharge of at least $1,558.12, plus the 

interest accrued on the overcharge.

7. The third disputed invoice is #41119-002. This 

invoice, for a 4 week rental, in the amount of $1,900.00, 

does not accurately reflect the amount of time for which 

the equipment was on-site at Tuscany Preserve.

Following a hearing, the trial court entered summary 

judgment in favor of Synergy and directed Custom Design and 

Singh to pay $81,875.43 plus interest and court costs. 

On appeal, Custom Design and Singh argue that this was 

error because Merali's affidavit established a genuine issue of 

material fact as to the amount due. Synergy, however, maintains 

that the affidavit only "asserted mere conclusions without any 

basis" and thus was insufficient to establish a genuine issue of 

material fact to preclude summary judgment. We agree with 

Synergy that Merali's affidavit did not establish a genuine issue of 
6

material fact and conclude that Custom Design and Singh have not 

met their burden on appeal of proving reversible error.

Summary judgment "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." Fla. R. Civ. P. 

1.510(c) (2020).3 "A movant for summary judgment has the initial 

burden of demonstrating the nonexistence of any genuine issue of 

material fact. But once he tenders competent evidence to support 

his motion, the opposing party must come forward with 

counterevidence sufficient to reveal a genuine issue." Rooker v. 

Ford Motor Co., 100 So. 3d 1229, 1231 (Fla. 2d DCA 2012) (quoting 

Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979)). Summary 

judgment evidence includes "any affidavits, answers to 

interrogatories, admissions, depositions, and other material as 

would be admissible in evidence." Fla. R. Civ. P. 1.510(b). 

"Supporting and opposing affidavits must be made on personal 

3

 Rule 1.510 was amended effective May 1, 2021. The prior 

version of the rule is applicable here because it was in effect when 

Merali's affidavit was made and when the trial court ruled on 

Synergy's summary judgment motion. But our disposition of this 

case would be the same under either version of the rule. 
7

knowledge, must set forth such facts as would be admissible in 

evidence, and must show affirmatively that the affiant is competent 

to testify to the matters stated therein." Fla. R. Civ. P. 1.510(e). 

Here, Synergy tendered competent admissible evidence to 

support its motion. Idleman's affidavit along with the attached 

credit application contract and invoices established that the parties 

had a contract for the rental of equipment on open account, that 

Custom Design breached that contract by failing to pay $81,875.43 

due on the account, and that Singh had signed a personal guaranty 

on the account.4 

As such, the burden shifted to the nonmovants to provide 

counterevidence establishing a genuine issue of material fact. See

Rooker, 100 So. 3d at 1231. The only evidence presented in 

opposition of summary judgment was Merali's affidavit. In that 

affidavit, Merali averred that he was the corporate president for 

F.I.R.E., that he was "the individual with F.I.R.E. . . . with the most 

knowledge of equipment rental at issue," that he "was on-site 

managing and supervising development activities at Tuscany 

4

 On appeal, Custom Design and Singh do not challenge the 

admissibility of any of Synergy's summary judgment evidence.
8

Preserve multiple days each week during the rental period," and 

that the equipment rented "was used, exclusively during the lease 

period, for construction for site improvements at Tuscany Preserve." 

Merali also challenged the correctness of three of the twentytwo invoices attached to Idleman's affidavit. As to two of the 

invoices, Merali asserted that they were for two-week rental periods 

but that "[t]he rental period . . . was supposed to be 1 week." It is 

undisputed, however, that neither Merali nor F.I.R.E. was a party to 

the credit application contract. Additionally, Merali does not assert 

that he had any direct relationship or entered into any agreements 

with Synergy. The written contract does not indicate the rental 

periods, but the invoices indicate that the equipment was all 

ordered by Arnold Singh, and nothing in Merali's affidavit 

contradicts that fact. As such, Merali did not have personal 

knowledge of any agreements between Synergy and Custom Design 

and Singh, and any information he could offer regarding those 

agreements—including how long the rental periods were "supposed 

to be"—would necessarily have to be inadmissible hearsay. 

But hearsay cannot form the basis in an affidavit for 

establishing a genuine issue of material fact that would preclude 
9

summary judgment. See Fla. R. Civ. P. 1.510(e) ("Supporting and 

opposing affidavits must be made on personal knowledge [and] 

must set forth such facts as would be admissible in evidence."); 

Johns v. Dannels, 186 So. 3d 620, 622 (Fla. 5th DCA 2016) ("The 

personal knowledge requirement found in rule 1.510(e) is meant to 

prevent the trial court from relying on hearsay when deciding a 

motion for summary judgment."); Fla. Dep't of Fin. Servs. v. 

Associated Indus. Ins. Co., 868 So. 2d 600, 602 (Fla. 1st DCA 2004) 

("The purpose of the personal knowledge requirement is to prevent 

the trial court from relying on hearsay when ruling on a motion for 

summary judgment . . . and to ensure that there is an admissible 

evidentiary basis for the case rather than mere supposition or 

belief." (quoting Pawlik v. Barnett Bank of Columbia Cnty., 528 So. 

2d 965, 966 (Fla. 1st DCA 1988))). " 'An affidavit . . . may not be 

based on factual conclusions or conclusions of law.' 'A factual 

predicate for the testimony is required, just as it would be required 

at trial.' " Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So. 3d 560, 

563-64 (Fla. 2d DCA 2020) (citations omitted) (first quoting Fla. 

Dep't of Fin. Servs., 868 So. 2d at 602, and then quoting Johns, 186 

So. 3d at 622).
10

As to the third invoice, in his affidavit, Merali asserts that 

invoice number 41119-002, "for a 4 week rental, in the amount of 

$1,900.00, does not accurately reflect the amount of time for which 

the equipment was on site at Tuscany Preserve." Again, we 

conclude that this statement by Merali is insufficient to create a 

genuine issue of material fact. 

The invoice in question was one of four invoices attached to 

Idleman's affidavit that deal with the same piece of equipment, a 

forklift with the serial number 0160085723. All four invoices 

indicate that the date the forklift was rented out was May 3, 2018. 

The first invoice, number 41119-001, charges for the period from 

May 3 to May 31, 2018. The second invoice, the one that Merali 

challenges in his affidavit, charges for the period from May 31 to 

June 28, 2018. The third invoice, number 41119-003, charges for 

the period from June 28 to July 26, 2018, and invoice 41119-004 

charges for the period from July 26 to August 1, 2018, and 

indicates that the forklift was returned to Synergy on August 1, 

2018. Thus, the invoices, along with Idleman's affidavit, establish 

the material fact that Custom Design had possession of Synergy's 
11

forklift from May 3 until August 1, 2018, and owed payment to 

Synergy for that time period. 

This fact is not refuted by Merali's statement in his affidavit 

that invoice number 41119-002 "does not accurately reflect the 

amount of time" that this forklift was on site at Tuscany Preserve. 

First, Synergy's summary judgment evidence does not suggest that 

the forklift was only on site at Tuscany Preserve for the four-week 

period from May 31 to June 28, 2018. Rather, the evidence 

established that the forklift was on site for a total of three months—

an amount of time not accurately reflected by invoice 41119-002 

alone. As such, Merali's affidavit does not conflict with Synergy's 

summary judgment evidence; both parties agree that invoice 41119-

002 does not accurately reflect the amount of time that particular 

forklift was on site at Tuscany Preserve. 

Second, even if we were to read Merali's affidavit to state that 

that particular forklift was on site during that four-week period for 

an amount of time less than four weeks—something that the plain 

language of the affidavit does not say—Merali in no way refutes the 

other invoices directed at the rental of this forklift or contradicts the 

date the equipment was first rented out or the date it was returned 
12

to Synergy. As such, his affidavit would only create a question of 

fact as to whether Custom Design used the equipment during that 

four-week period exclusively at Tuscany Preserve. 

Such would not preclude summary judgment of the breach of 

contract and open account allegations as the location where the 

equipment was used is not a material fact as to those counts. To 

preclude summary judgment, "the 'issue' must be one of material

fact. Issues of nonmaterial facts are irrelevant to the summary 

judgment determination." Cont'l Concrete, Inc. v. Lakes at La Paz III 

Ltd. P'ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000). "A material 

fact, for summary judgment purposes, is a fact that is essential to 

the resolution of the legal questions raised in the case." Id. Here, 

although the question of where the equipment was used may be a 

material fact as to the construction lien count against F.I.R.E., it is 

not a material fact in the determination of whether Custom Design 

and Singh took possession of Synergy's rental equipment pursuant 

to their contract with Synergy and failed to pay the cost of the 

rental in accordance with their contractual obligation.5

5

 Our conclusion as to this issue is not changed by the fact 

that Merali also averred in his affidavit that the equipment "was 

used, exclusively during the lease period, for construction of site 
13

For the reasons discussed, Merali's affidavit did not establish 

that a genuine issue of material fact remained. As such, the trial 

court did not err in entering summary judgment against Custom 

Design and Singh and in favor of Synergy.

Affirmed. 

ROTHSTEIN-YOUAKIM, J., Concurs.

ATKINSON, J., Dissents.

improvements at Tuscany Preserve" because his affidavit does not 

establish that he "is competent to testify to th[at] matter." See Fla. 

R. Civ. P. 1.510(e). He stated in his affidavit that he was on site at 

Tuscany Preserve only "multiple days each week" during the rental 

period. He did not, however, aver that he was present at Tuscany 

Preserve every day during the rental period. He cannot attest to 

what occurred at Tuscany Preserve or where the equipment was on 

days that he was not present.