Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BRIAN McELROY and FRANCES ) McELROY, ) ) Appellants, ) ) v. ) Case No. 2D18-4932 ) THE OAKS ON THE BAY, LLC, d/b/a ) THE OAKS OF CLEARWATER ) REHABILITATION CENTER, ) ) Appellee. ) ___________________________________) Opinion filed January 17, 2020. Appeal from the Circuit Court for Pinellas County; Jack R. St. Arnold, Judge. Michael Harkins and Rocky L. Rinker of Rocky Rinker, Attorney at Law, P.A., St. Petersburg, for Appellants. Amy L. Dilday of McCumber, Daniels, Buntz, Hartig, Puig & Ross, P.A., Tampa, for Appellee. SILBERMAN, Judge. Brian and Frances McElroy seek review of a final summary judgment in favor of the Oaks on the Bay, LLC, in the Oaks' action to enforce two contracts for payment of residential rehabilitation services provided to Frances McElroy. Because the judgment was entered without providing the McElroys the opportunity to be heard at a hearing, we reverse. "Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion. 'The rule does not provide the trial court with discretion to decide whether a hearing is required.' " Richard v. Bank of Am., N.A., 258 So. 3d 485, 488 (Fla. 4th DCA 2018) (quoting State Farm Fire & Cas. Co. v. Lezcano, 22 So. 3d 632, 634 (Fla. 3d DCA 2009)); see also WG Evergreen Woods SH, LLC v. Fares, 207 So. 3d 993, 996 (Fla. 5th DCA 2016). It is a denial of due process for a court to rule on a summary judgment motion without conducting a hearing. Richard, 258 So. 3d at 488; Lezcano, 22 So. 3d at 634. Such a denial of due process constitutes fundamental error and may be raised on appeal regardless of whether the argument was made below. Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 (Fla. 3d DCA 2018). The Oaks recognizes that due process requires providing a party a meaningful opportunity to be heard before granting a motion for summary judgment. However, it asserts that the McElroys waived their right to a hearing. It asserts that waiver was apparent based on the McElroys' dilatory conduct during discovery, failure to obtain new counsel after their attorney withdrew, failure to attend a case management conference, and failure to file a written response to the motion for summary judgment. "A party may waive a legal right, 'whether secured by contract, conferred by statute, or guaranteed by the Constitution.' " Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 305 (Fla. 2017) (quoting DK Arena, Inc. v. EB Acquisitions I, LLC, 112 -2- So. 3d 85, 97 (Fla. 2013)). A party waives such a right by taking action that is inconsistent with that right. Id. There is no indication in the record that the McElroys took any action inconsistent with their right to a hearing on the Oaks' summary judgment motion. The Oaks filed a complaint in November 2017 and amended the complaint in February 2018. The McElroys filed timely answers and affirmative defenses. The McElroys did object to the Oaks' March 2018 request for production, and they failed to respond to a May 2018 request for production. But they produced financial affidavits after the court directed them to do so at a hearing on their attorney's motion to withdraw in August 2018. In early October 2018, the Oaks filed its motion for summary judgment and noticed a hearing for December 20, 2018. It is true that the McElroys did not attend a case management conference on November 1, 2018. And while the Oaks is correct that the McElroys did not file a written response to the summary judgment motion, the McElroys' time to file a response and any supporting evidence had not expired. See Fla. R. Civ. P. 1.150(c). There is no indication in the record that the McElroys waived their right to a hearing on that motion. Nonetheless, the Oaks obtained final summary judgment and then cancelled the scheduled hearing. Thus, because the entry of final summary judgment without a hearing violated the McElroy's due process rights, we reverse. Reversed and remanded. BADALAMENTI and SMITH, JJ., Concur. -3-