Siciliano v. Hunerberg, 2319
| Decision Date | 13 December 1961 |
| Docket Number | No. 2319,2319 |
| Citation | 135 So.2d 750 |
| Parties | Nathan SICILIANO, Appellant, v. Arthur HUNERBERG, Appellee. |
| Court | Florida District Court of Appeals |
Howard P. Garman, Jr., Fort Lauderdale, for appellant.
Marvin M. Green, Miami Beach, for appellee.
This appeal is from a summary final judgment in favor of the plaintiff below in an action based upon a promissory note with provision therein for an attorney's fee.
The note contained language to indicate a maturity date of July 1, 1960. There was also other language therein indicating that the note would not mature until property known as Gateway Apartments were sold.
On the motion for summary judgment and affidavits in support thereof, the trial judge construed the note as having a maturity date of July 1, 1960, and construed the following:
'In the event of a sale of the property known as Gateway Apartments, Inc., on or before the expiration date of this note, said note shall become due and payable.'
as providing for an acceleration of the due date in the event the property mentioned therein was sold before the 1st of July, 1960.
The appellant complains of the refusal of the trial judge to consider affidavits in opposition to the motion for summary judgment although it is admitted that they were not filed prior to the hearing as required by the procedure rules.
We affirm the trial court as to granting a summary judgment on the note in question.
However, we must reverse the trial judge on his determination of a reasonable attorney's fee for the appellee. The record discloses that the following order was entered:
'This Cause was duly presented by counsel, after notice, and, upon consideration thereof, it is
'Ordered and Adjudged that:
'1. Motion for Summary Judgment is granted;
Subsequently the appellee submitted affidavits of two Miami Beach attorneys that a reasonable attorney's fee would be $500. Based on the affidavits, the court entered final judgment in the sum of $3,000 as principal on the note and $500 as a reasonable attorney's fee.
The appellant, defendant below, had filed an answer denying various allegations of the complaint and assigned error in this court to the ex parte proceedings culminating in an award for an attorney's fee based on the two affidavits without appellant having ...
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Burton v. GOV Contracting Corp.
...it referred to filing of affidavits instead of serving of affidavits. GOV also relies on this court's decision of Siciliano v. Hunerberg, 135 So.2d 750 (Fla. 2d DCA 1961), to support its argument that counteraffidavits must be filed the day prior to the hearing. 3 A careful reading of Sicil......
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...1.36(c), Florida Rules of Civil Procedure, 30 F.S.A.; Cleveland Trust Company v. Foster, Fla.1957, 93 So.2d 112; Siciliano v. Hunerberg, Fla.App.1961, 135 So.2d 750. However, even considering that the affidavit filed by the appellant was timely filed, it failed to contain any facts and woul......
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Turek v. First Nat. Bank at Orlando, s. 68--1066 and 69--281
...Cf. Boyette v. Reliable Finance Company, Fla.App.1966, 184 So.2d 200; Lyle v. Lyle, Fla.App.1964, 167 So.2d 256; Siciliano v. Hunerberg, Fla.App.1961, 135 So.2d 750. The orders herein appealed are reversed and this cause is remanded to the trial court for further action consistent It is so ......
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...Cleveland Trust Company v. Foster, Fla.1957, 93 So.2d 112. See also Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404; Siciliano v. Huneberg, Fla.App.1961, 135 So.2d 750; and Hardcastle v. Mobley, Fla.App.1962, 143 So.2d 715.5 Fla.1956, 88 So.2d 532.6 That this problem has been recognized by......