IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

 DISPOSITION THEREOF IF FILED

S & M TRANSPORTATION, INC., ETC.,

Appellant/Cross-Appellee,

v. Case No. 5D14-4401

NORTHLAND INSURANCE COMPANY, 

ETC.,

Appellee/Cross-Appellant.

________________________________/

Opinion filed December 2, 2016

Appeal from the Circuit Court 

for Orange County,

Donald A. Myers, Jr., Judge.

V. Rand Saltsgaver, of Law Offices of Rand 

Saltsgaver, and Charles Parker, Jr., of 

Mapp & Parker, P.A., Orlando, for 

Appellant/Cross-Appellee.

Maureen G. Pearcy, Andrew E. Grigsby,

and John J. Cavo, of Hinshaw & Culbertson 

LLP, Coral Gables, for Appellee/CrossAppellant.

CRAGGS, A.M., Associate Judge.

S & M Transportation, Inc., (“S&M”) appeals and Northland Insurance Co. 

(“Northland”) cross-appeals the trial court’s “Final Declaratory Judgment for the Plaintiff, 
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S&M Transportation, Inc.” entered following a jury trial.1 S&M argues that the trial court 

erred as a matter of law when it separately made findings of fact in the final declaratory 

judgment regarding S&M’s failure to establish damages, where the parties’ joint pretrial 

stipulation established that the only issue for determination by the jury was whether 

S&M’s Freightliner truck had been lost due to theft. In its cross-appeal, Northland argues 

that the trial court erred by denying its motion for summary final judgment and its posttrial motion to correct the final declaratory judgment. Concluding that the trial court erred 

when it made findings exceeding the scope of the parties’ joint pretrial stipulation, we 

reverse the final declaratory judgment.2 We affirm on Northland’s cross-appeal.

In this case, Northland issued a one-year commercial automobile policy to S&M

that insured the truck at issue. S&M contracted with Broadway Premium Funding 

(“Broadway”) to finance the premiums owed on the insurance policy. Sometime after

12:01 a.m. on May 21, 2010, S&M’s truck was allegedly stolen, resulting in S&M filing a 

claim with Northland under the policy for the loss of the truck by theft. Northland denied 

coverage, asserting that it no longer had contractual responsibility to S&M for the claim 

because the policy had been cancelled, effective at 12:01 a.m. on May 21, 2010, due to 

S&M’s non-payment of the monthly premium to Broadway. Thereafter, S&M filed a 

complaint, seeking a declaration of its rights under the policy, alleging, in part, that its 

 

1 Even though the court’s final judgment stated in the title that it was “for” S&M, as 

discussed infra, by finding in the judgment that S&M failed to prove damages, the net 

effect of the final judgment actually favored Northland.

2 Accordingly, we find it unnecessary to address S&M’s other issues on appeal.
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truck had been stolen, that it had filed a claim under its policy with Northland, and that 

Northland wrongfully denied coverage for the loss under the policy. 

After filing its answer and conducting discovery, Northland filed a motion for 

summary final judgment regarding one of its affirmative defenses, asserting that the policy 

was cancelled prior to the theft and, therefore, Northland was not liable for coverage. 

Northland attempted to prove cancellation of the policy by attaching to its summary 

judgment motion copies of certain documents, including: the cancellation notice from 

Broadway to Northland’s agent, J.M. Wilson; the notice of cancellation from Northland to 

S&M; and the notice of intent to cancel from Broadway to S&M. Although none of these

documents attached to Northland’s motion were verified or authenticated by separate 

affidavit, they were attached to the sworn deposition of Northland’s representative, Drew 

Johnson, which had been filed with the court in advance of the summary judgment 

hearing. The trial court denied Northland’s motion for summary judgment by 

unelaborated order.

At a pretrial conference, the parties represented to the court that the sole issue to 

be resolved at trial was whether, under the terms of the policy, there was a theft of S&M’s 

truck. Thereafter, the parties filed a joint pretrial stipulation wherein they agreed that 

“[t]his is an action for declaratory relief as to whether the Plaintiff suffered the loss of the 

Freightliner tractor truck from any cause under the comprehensive coverage, or by theft, 

pursuant to the Physical Damage provisions of the insurance policy between the Plaintiff

. . . and the Defendant.” At the conclusion of the trial, the jury specifically found that S&M 

suffered a loss under the physical damage provision of the insurance policy with 

Northland for the theft of the truck. 
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Thereafter, the trial court issued the final declaratory judgment under review. The 

judgment provided that S&M “suffered a cause of loss that would be covered under the 

physical damage provision of the insurance policy with [Northland] for the theft of its 

Freightliner tractor truck,” but also went on to find that “there has been no proof of a loss 

for recovery of damages that would be payable under the insurance policy.” Therefore, 

by its final judgment, the court essentially determined that there was no covered loss 

under the policy. 

We find that the trial court erred when it included additional findings in the final 

judgment that exceeded the agreed upon issues to be tried by the parties in the pretrial 

stipulation. The parties’ pretrial stipulation limited the issues of fact and law to be 

presented at trial and decided by the jury. “[T]he purpose of the pretrial stipulation is to 

put the parties on notice of what is in dispute . . . .” Knight v. Walgreens, 109 So. 3d 

1224, 1228 (Fla. 1st DCA 2013) (citing Marin v. Aaron’s Rent to Own, 53 So. 3d 1048 

(Fla. 1st DCA 2010)). Although the parties could have also agreed to have the jury 

determine damages, they did not do so, and by their pretrial stipulation, they limited the 

only issue for the jury to determine was whether there was a theft of S&M’s truck that was 

covered under the insurance policy. 

“A pretrial stipulation limiting the issues to be tried is ‘binding upon the parties and 

the court, and should be strictly enforced.’” LPI/Key W. Assocs., Ltd. v. Beachcomber 

Jewelers, Inc., 77 So. 3d 852, 854 (Fla. 3d DCA 2012) (quoting Broche v. Cohn, 987 So.

2d 124, 127 (Fla. 4th DCA 2008)). Based upon the pretrial stipulation, S&M had no 

reason to attempt to establish quantifiable damages at trial. Moreover, Northland did not 

argue at trial that S&M should not prevail due to its failure to present evidence of 
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damages. After the jury determined that S&M suffered a theft that was covered under the 

policy, the trial court’s entry of the final declaratory judgment should have been 

constrained to the coverage issue alone. Consequently, the trial court’s additional

findings and rulings as to damages were error.

Turning to Northland’s cross-appeal, Northland argues that its motion for summary 

judgment was improperly denied because the insurance policy issued by Northland to 

S&M was cancelled prior to the truck being stolen, thus eliminating coverage for the theft. 

As we explain below, we find that the trial court properly denied Northland’s motion for 

summary judgment, albeit for the wrong reasons. Accordingly, pursuant to the “tipsy 

coachman” doctrine, we affirm the trial court’s denial of Northland’s motion for summary 

judgment. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (stating that the “tipsy 

coachman” doctrine “allows an appellate court to affirm a trial court that ‘reaches the right 

result, but for the wrong reasons’ so long as ‘there is any basis which would support the 

judgment in the record’” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 

638, 644–45 (Fla. 1999))). 

To obtain a summary judgment, Northland had the burden of presenting competent 

evidence to support the nonexistence of a genuine issue of material fact. See Colon v. 

JP Morgan Chase Bank, NA, 162 So. 3d 195, 197 (Fla. 5th DCA 2015) (citing Holl v. 

Talcott, 191 So. 2d 40, 43 (Fla. 1966)). Northland was required to “specifically identify 

any affidavits, answers to interrogatories, admissions, depositions, and other materials 

as would be admissible in evidence” on which it relied. Fla. R. Civ. P. 1.510(c). 

Additionally, supporting affidavits must

be made on personal knowledge, shall set forth such facts as 

would be admissible in evidence, and shall show affirmatively 
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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. 

Id. at 1.510(e). 

As previously described, Northland attached to its motion for summary judgment 

documents that were neither verified nor authenticated in support of its defense that the 

policy was cancelled prior to the theft of the truck. “[M]erely attaching an unsworn 

document . . . to a motion for summary judgment does not, without more, satisfy the 

procedural strictures inherent in Florida Rule of Civil Procedure 1.510(e).” First Union 

Nat’l Bank of Fla. v. Ruiz, 785 So. 2d 589, 591 (Fla. 5th DCA 2001) (citing Bifulco v. State 

Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 708 (Fla. 4th DCA 1997)). Therefore, the 

unverified and unauthenticated copies of the notices of cancellation attached to 

Northland’s motion were insufficient for summary judgment purposes because only 

competent evidence that would be admissible at trial may be considered in ruling on a 

motion for summary judgment. See Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783, 

786 (Fla. 2d DCA 2011) (citations omitted).

We acknowledge that the documents offered by Northland to prove cancellation 

were also attached to the timely filed, sworn deposition of Northland’s representative, 

Drew Johnson. Although the documents themselves are hearsay, under certain 

circumstances, “business records” can be admissible in evidence as an exception to the 

hearsay rule under section 90.803(6)(a), Florida Statutes (2015), and thus can be 

competent evidence in support of a motion for summary judgment. However, for these 

records to be admissible under this statute, the proponent must show that 
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(1) the record was made at or near the time of the event; (2) 

was made by or from information transmitted by a person with 

knowledge; (3) was kept in the ordinary course of a regularly 

conducted business activity; and (4) that it was a regular 

practice of that business to make such a record. 

Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008) (citing Jackson v. State, 738 So. 2d 382, 

386 (Fla. 4th DCA 1999)). 

Accordingly, for Northland to have been able to utilize the cancellation notices 

attached to Mr. Johnson’s deposition as proper summary judgment evidence under the 

business records exception to the hearsay rule, Mr. Johnson should have testified under 

oath as to the predicate requirements for the admissibility of these documents. See id.

(citing § 90.803(6)(a), Fla. Stat. (2004)). Northland’s defense on this point failed because 

Northland took no steps to sufficiently authenticate the documents under the business 

records exception to the hearsay rule during Mr. Johnson’s deposition.3 See § 

90.803(6)(a), Fla. Stat. (2015).

Accordingly, we reverse the trial court’s final declaratory judgment because it 

included findings of fact and conclusions of law that exceeded the parameters of the joint 

pretrial stipulation of the parties, and we remand for the entry of a final declaratory 

judgment consistent with this opinion and the jury’s verdict.

4

 As a result, we affirm the 

 

3 Whether or not Northland’s representative, Drew Johnson, would have been able 

to lay a proper predicate for Broadway’s business records and testify regarding those 

records is unknown, as Mr. Johnson was never asked the necessary questions to 

authenticate the documents during his deposition.

4 S&M filed a post-trial motion for supplemental relief to recover damages. See § 

86.011(2), Fla. Stat. (2015) (“Any person seeking a declaratory judgment may also 

demand additional, alternative, coercive, subsequent, or supplemental relief in the same 

action.”). This motion is not before us because the trial court had not ruled upon it by the 

time the notice of appeal was filed.
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trial court’s denial of Northland’s motion to correct the final declaratory judgment. Finally, 

we affirm the trial court’s denial of Northland’s motion for summary final judgment for the 

reasons stated herein. 

REVERSED and REMANDED with instructions.

ORFINGER and BERGER, JJ., concur.