National Properties, Inc. v. Ballenger Corp.
Decision Date | 01 May 1973 |
Docket Number | No. 72-918,72-918 |
Citation | 277 So.2d 29 |
Parties | NATIONAL PROPERTIES, INC., a Florida corporation, Appellant, v. BALLENGER CORPORATION et al., Appellees. |
Court | Florida District Court of Appeals |
Wallace, Kreutzer & Breslow, Miami, for appellant.
Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Wicker, Smith, Psyzka, Blomqvist & Davant and Stephen A. Stieglitz, Miami, for appellees.
Before PEARSON and CHARLES CARROLL, JJ., and CREWS, JOHN J., Jr., Associate Judge.
The plaintiff-appellant appeals a summary final judgment for the defendants. Appellant's complaint alleged that the defendants were engaged in building a part of an expressway between Miami Avenue and McArthur Causeway and, in so doing, carelessly and negligently drove piling so as to cause extensive damage to plaintiff's building located near the construction site.
Before discovery proceedings were completed, the defendants moved for summary judgment. Then, the plaintiff, in addition to filing its own motion for summary judgment, moved for the production of the site and pile driving plans in the possession of the defendants. The motion to produce was granted by the court; the resulting order required the production of the documents within twenty days from the date of the order. After a hearing, the trial court entered summary final judgment for the defendants.
Thereafter, a timely motion for rehearing was filed by the plaintiff. The motion was accompanied by affidavits which plaintiff's counsel asked the court to accept and consider on rehearing. The trial court denied plaintiff's motion for rehearing and refused to accept the affidavits.
Appellees argue that the testimony of their expert conclusively demonstrated that the plaintiff could not prove its case. We think that such a holding would be contrary to the holdings in Meigs v. Lear, Fla.App.1968, 210 So.2d 479, and to the authorities cited therein. But we need not rest our decision on a discussion of inferences to be drawn from the facts before the trial court at the time of the hearing on the motions for summary judgment. The court's error in refusing to consider the plaintiff's affidavits submitted with its timely motion for a rehearing is immediately apparent. This point is governed by the holding of the Supreme Court in Holl v. Talcott, Fla.1966, 191 So.2d 40, 46-47, and by our recent decision in Fernandez v. Cunningham, Fla.App.1972, 268 So.2d 166. In the Fernandez case we pointed out:
'In Holl...
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