DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BLUE STAR RESTORATION INC. (A/A/O TAMY KRZIZIKE),

Appellant,

v.

FIRST PROTECTIVE INSURANCE COMPANY,

Appellee.

No. 4D21-52

[May 19, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Ellen Feld, Judge; L.T. Case Nos. COWE18-5607(83) and 

CACE19-10865(AP).

Peter Mineo, Jr., and Marius Boeru of The Mineo Salcedo Law Firm, 

P.A., Davie, for appellant.

Jennifer V. Ortega and Jason G. Little of Simon, Reed & Salazar, P.A., 

and Jay M. Levy and Ryan L. Marks of Jay M. Levy, P.A., Miami, for 

appellee.

WARNER, J.

Appellant Blue Star Restoration, Inc. challenges the final summary 

judgment entered in favor of appellee First Protective Insurance Company. 

As there remain disputed issues of material fact, we reverse.

Pursuant to an assignment of insurance benefits agreement with First 

Protective’s insured, appellant sued First Protective for breach of contract 

for failing to pay for mitigation repairs it performed after an insured loss. 

The complaint alleged the damages did not exceed fifteen thousand 

dollars, but did not allege a specific amount due. Without answering the 

complaint, First Protective moved for summary judgment, claiming that it 

had paid appellant based upon its invoice, and attached a copy of the 

check made out to appellant, the insured, a public adjuster, and a 

mortgage company. No affidavit was filed with the copy of the check 

stating that the check was cashed or even mailed. Although a copy of the 

check was attached, a footnote in the motion stated that a new check was 

issued about a month later to include a different mortgage holder as payee 
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along with the public adjuster, appellant, and the insured. A copy of that 

check was not attached to the pleading.

Appellant filed a response, stating that the assignment of benefits 

contract required payment to be made directly to appellant. The check 

copy attached to the motion was not, as it was made payable to multiple 

parties. Appellant also filed an affidavit from its corporate representative, 

stating that it had sent two invoices to First Protective, neither of which 

had been paid.1 At the hearing on summary judgment, First Protective 

relied on the insurance policy to counter appellant’s assertion that the 

check was required to be made out solely to appellant, insisting that it 

required the insured and the public adjuster to be included. However, the 

insurance policy was not part of the submissions attached to the motion 

for summary judgment. Nevertheless, the court entered summary 

judgment.

An order granting summary judgment is reviewed de novo. Russell v. 

BAC Home Loans Servicing, LP, 239 So. 3d 98, 99 (Fla. 4th DCA 2018). 

“Summary judgment is proper if there is no genuine issue of material fact 

and [] the moving party is entitled to [] judgment as a matter of law.”

Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 

2000). The court may consider “affidavits, answers to interrogatories, 

admissions, depositions, and other materials as would be admissible in 

evidence” on which the parties rely. See Fla. R. Civ. P. 1.510(c).

Here, First Protective filed a motion for summary judgment without any 

affidavits, alleging payment in full. Appellant filed an affidavit in response, 

stating that it had two invoices outstanding. The affidavit stated that 

neither invoice had been paid, although appellant admitted that the

amount of the check attached to the motion for summary judgment was 

the amount of one of its invoices. This affidavit was sufficient to raise a 

disputed issue of material fact as to the amount owed and whether 

appellant had been paid. Moreover, at the motion hearing, First Protective

contested appellant’s claim that the checks were issued improperly and in 

violation of the assignment of benefits contract. First Protective relied on 

the insurance policy’s provisions to contend that the public adjuster was 

1 For the first time on appeal, appellant argues that the two invoices together 

exceeded the county court jurisdictional limit in 2019 of $15,000, and thus the 

county court did not have jurisdiction to hear the case. However, “[a]n appellate 

court is generally required to apply the law in effect at the time of its decision.” 

Fla. Patient’s Comp. Fund v. Von Stetina, 474 So. 2d 783, 787 (Fla. 1985). As of 

January 1, 2021, county court jurisdiction increased to $30,000. Therefore, the 

jurisdictional issue is moot.
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properly on the check. However, the policy was never made part of the 

record. Summary judgment must be based solely on those materials 

properly presented to the court in accordance with the procedure set forth 

in Florida Rule of Civil Procedure 1.510. Here, that was not done. Because 

the policy provisions are not before this court, we express no opinion as to 

whether the check, as issued with multiple payees, violated the insurance 

company’s obligations pursuant to the insurance contract.

For the foregoing reasons, we reverse the final summary judgment and 

remand for further proceedings.

DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.