You may read Judge Munyon's order below.
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA Civil Division
ZENAIDA GONZALEZ, CASE NO.: 48-2008CA-24573-O
Plaintiff, DIV: 43
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court on March 23, 2012, on the Plaintiffs Motion for Partial Summary Judgment, filed February 15, 2012, and Defendant’s Motion for Summary Judgment, filed February 27, 2012, pursuant to Florida Rule of Civil Procedure 1.510. Having considered the parties’ memoranda in support and opposition, arguments, legal authority, and otherwise being fully advised, the Court finds as follows:
A motion for summary judgment is not a substitute for trial on the merits and the trial court is precluded from resolving disputed issues of fact when considering the motion Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995).
Summary judgment is appropriate only if there are no genuine issues of material fact and the undisputed facts entitle the movant to judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). In determining if there are genuine issues of material fact, the court must consider the facts in the light most favorable to the non-moving party and must draw all reasonable inferences in favor of the non-moving party. Moore v. Morris, 475 So. 2d 666 (Fla. 1985) (“A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Citation omitted.)
Even if the facts are uncontroverted, summary judgment is improper if there are competing inferences that can be reasonably drawn. Hervey, 650 So. 2d at 646.
The parties agree that the undisputed facts are as follows:
The defendant made a series of statements to law enforcement on July 16, 2008 which included a handwritten statement, a video recorded statement at 4:11 a.m., and a video recorded statement at 1:20 p.m. During each of these statements, the defendant indicated that her child was in the company of a nanny by the name of Zenaida Fernandez-Gonzalez when she was last seen. Between the video recorded statements, law enforcement showed the defendant a photograph of the plaintiff, and the defendant unequivocally told law enforcement that the plaintiff was not the nanny. At the hearing, the plaintiff agreed that these statements cannot be and are not the statements upon which her claim is based.
On July 25, 2008, while in custody, the defendant had a conversation with her parents, George and Cindy Anthony, through the remote video visitation system at the Orange County Jail. The conversation was recorded in its entirety so that the Words exchanged between the defendant and her parents are not in dispute.
The defendant stated, “When they went and interviewed that girl down in Kissimmee, they never showed me a picture of her....” The plaintiff argues that this statement implicates the plaintiff in the disappearance of the defendant’s daughter because the plaintiff was the only Zenaida Gonzalez interviewed in Kissimmee. The plaintiff further argues that the statement implies that the plaintiff is the nanny in question and inferentially denies the previous exoneration.
Conversely, the defendant argues that the entire context of the conversation clearly
shows that the plaintiff is not implicated by the defendant but is instead exonerated. This statement is susceptible to two competing inferences, both of which are reasonable, thus this issue must be decided by a jury under Hervey, above.
Plaintiff argues that the undisputed facts show that the above statement was false and that the statement was published by Cindy Anthony acting as agent of the defendant. As stated above, the context of the statement is a disputed matter for jury determination. Likewise, whether Cindy Anthony published the statement as an agent of the defendant or without the defendant’s express authority is a disputed matter for jury determination. The defendant argues that the undisputed facts show that the defendant never implicated this plaintiff in the disappearance of the defendant’s daughter. Both parties agree that the defendant did not implicate this plaintiff in the disappearance of the child in the July 16, 2008 statements to law enforcement. However, the inferences to be drawn from the July 25, 2008 statement are disputed matters for jury determination.
Based upon the foregoing, it is therefore ORDERED and ADJUDGED as follows:
1. Plaintiff s Motion for Partial Summary Judgment is DENIED.
2. Defendant’s Motion for Summary Judgment is GRANTED in part and DENIED in part as follows:
a. As conceded by the plaintiff at the hearing, defendant’s statements to law enforcement on July 16, 2008 cannot be the false statements that form the basis of plaintiffs claim because the defendant unequivocally told law enforcement that the plaintiff was not the “nanny” when shown a photograph of the plaintiff. As such, the defendant’s motion for summary
judgment is granted as to these statements.
b. Competing inferences can be drawn from the defendant’s statement over the jail’s video visitation system on July 25, 2008 regarding whether the defendant implicated the plaintiff in
the disappearance of the defendant’s daughter. As such, the defendant’s motion for summary judgment is denied as to this statement.
DONE AND ORDERED in Chambers at Orlando, Orange County, Florida,
LISA T. MUNYO Circuit Judge
CERTIFICATE OF SERVICE
this day of April, 2012.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via the Electronic Court Filing system to John Morgan, Esquire, Keith
Mitnik, Esquire, and John Dill, Esquire, Morgan and Morgan, P.A., 20 North
Orange Avenue, Suite 1600, Orlando, Florida, 32801; Charles M. Greene, Esquire,
Charles M. Greene, P.A., 55 East Pine Street, Orlando, Florida, 32801; and
Andrew J. Chmelir, Esquire, Jacobson, McClean, Chmelir, & Ferwerda, P.A., 351
East State Road 434, Suite A, Winter Springs, Florida, 32708, this 12th day of