Walker v. Franklin, 95-1544
| Decision Date | 13 March 1996 |
| Docket Number | No. 95-1544,95-1544 |
| Citation | 669 So.2d 1088 |
| Court | Florida District Court of Appeals |
| Parties | 21 Fla. L. Weekly D643 Julia WALKER, Appellant, v. Evelyn FRANKLIN, Appellee. |
Appeal from the Circuit Court of the Seventeenth Judicial Circuit, Broward County; C. Lavon Ward, Judge. No. 94-2107 09.
Nancy W. Gregoire and Thomas K. Gallagher of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
James O. Walker, III of Law Offices of James O. Walker, III, Pompano Beach, for appellee.
We reverse the entry of summary judgment for two reasons. First, the trial court erred in denying the motion to vacate because there was excusable neglect in the failure of appellant's attorney to attend the summary judgment hearing. See Somero v. Hendry Gen. Hosp., 467 So.2d 1103 (Fla. 4th DCA), rev. denied sub nom., Hayslip v. Somero, 476 So.2d 674 (1985). There was a meritorious defense, and had the appellant's counsel been present, counsel surely would have been able to point out the second reason for reversal, namely that the motion and affidavits do not negate all issues of material fact. See, e.g., Moore v. Morris, 475 So.2d 666 (Fla.1985). This was a quiet title action where the appellant claimed that she had purchased property from appellee pursuant to a contract for deed. The appellee disputed this but did not negate all of the allegations of the complaint in her affidavit, particularly issues of payment. Finally, appellee's contention that the contract for deed fails because of the failure to have two subscribing witnesses on the contract is without merit. Rosenthal v. Finger & Margolis, P.A., 460 So.2d 993 (Fla. 4th DCA 1984).
Reversed.
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...Ins. Co. v. DeWitt, 458 So.2d 398 (Fla. 1st DCA 1984). Therefore, section 689.01 does not apply to mortgages, see Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996) (rejecting appellant's argument that the contract for deed failed because it was not signed by two witnesses); Rosenthal v......
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Jerue v. Holladay, 2D05-367.
...4th DCA 2001). A trial court abuses that discretion by denying such relief when proper grounds are demonstrated. Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996). In reviewing the decision of the trial court, the appellate court must apply a "reasonableness" test. Tenny v. Allen, 858 ......
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Gascue v. HSBC Bank, U.S.A., Nat'l Ass'n
...summary judgment hearing may constitute the type of “excusable neglect” that warrants relief under rule 1.540(b). See Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996) (holding it was error to deny rule 1.540(b) relief when appellant's attorney failed to attend a summary judgment heari......