Willis v. L. W. Foster Sportswear Co., Inc.
| Decision Date | 30 November 1977 |
| Docket Number | No. 77-130,77-130 |
| Citation | 352 So.2d 922 |
| Parties | James H. WILLIS, Jr., d/b/a Pacer Men's and Women's Wear, Appellant, v. L. W. FOSTER SPORTSWEAR CO., INC., a Pennsylvania Corporation, Appellee. |
| Court | Florida District Court of Appeals |
William F. Casler, St. Petersburg Beach, for appellant.
David A. Luczak, Largo, for appellee.
The trial court awarded plaintiff/appellee a summary final judgment against defendant-- /appellant. On appeal we consider whether the court erred in denying defendant's motion for rehearing where the motion was accompanied by a counteraffidavit that created an issue of material fact. We hold that the trial judge did not abuse his discretion in failing to consider defendant's counteraffidavit on rehearing. We affirm.
Plaintiff sued defendant for $2,511.40, plus interest and costs, on an open account. Plaintiff's amended complaint incorporated certain exhibits purporting to establish the debt. Defendant answered with a general denial. On September 1, 1976, plaintiff moved for summary judgment. Attached to the motion was an affidavit of one of its corporate officers in proof of its claim. The affidavit in turn incorporated copies of the exhibits attached to plaintiff's complaint.
Upon filing the motion for summary judgment, plaintiff's counsel served defense counsel with a copy of the motion and a notice scheduling a hearing on October 15. No discovery was attempted by either party. Defendant did not file any counteraffidavits prior to the hearing, nor does the record disclose any request by defense counsel for a continuance or leave to file any counteraffidavits. Several days after the hearing the court entered a summary final judgment in favor of plaintiff for $2,875.93.
Since the pleadings and plaintiff's affidavit demonstrated there was no genuine issue as to any material fact, the trial court did not err in entering summary judgment in favor of plaintiff. However, after summary judgment was entered, defendant filed a timely motion for rehearing, accompanied by his own affidavit, making specific denials of plaintiff's claim. The trial court denied the motion for rehearing.
The counteraffidavit filed with defendant's motion for rehearing specifically controverted the facts of plaintiff's affidavit upon which the summary judgment was based. Therefore, the counteraffidavit was sufficient to create a material issue of fact. This being so, it is obvious to us that the trial judge declined to consider the defendant's counteraffidavit. So, the issue we now address is whether the trial court abused its discretion in refusing to consider defendant's counteraffidavit filed with his motion for rehearing.
Florida R.Civ.P. 1.510 governs summary judgments. Subsection (e) states the court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or affidavits. Subsection (f) provides that the court may also order a continuance to permit affidavits to be obtained, depositions to be taken, discovery to be had, or to make such other orders as are just. Thus the rule provides adequate safeguards to assure a nonmoving party a fair opportunity to come forward and show that a genuine issue of fact exists before the court rules on a motion for summary judgment. However, once a summary judgment has been entered, the granting or denial of rehearing is a matter within the sound discretion of the trial court; but, as pointed out in Blue v. Blue, 66 So.2d 228 (Fla.1953), this discretion cannot be exercised arbitrarily.
At the outset, we recognize the Third District Court of Appeal has held that a trial court does not have the discretion to ignore an affidavit filed with a motion for rehearing merely on the grounds that the affidavit was not filed prior to the hearing on the motion for summary judgment. See Berrol v. Concord Fla., Inc., 305 So.2d 310 (Fla.3d DCA 1974); National Properties, Inc. v. Ballenger Corp., 277 So.2d 29 (Fla.3d DCA 1973). We believe these holdings go too far, and are based on an erroneous interpretation of the obiter dictum in Holl v. Talcott, 191 So.2d 40 (Fla.1966). In Holl the supreme court observed that the liberal presumptions which favor the nonmoving party in a summary judgment procedure should continue and be similarly applied on a subsequent motion for rehearing. Holl was a medical malpractice case where the defendants moved for summary judgment and submitted several...
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Burton v. GOV Contracting Corp.
...be filed prior to the day of hearing on the motion." Burns, 432 So.2d at 100. Burns cites to the case of Willis v. L.W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla. 2d DCA 1977), as its authority for its holding. Willis, however, merely held that the trial court did not abuse its discre......
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...Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980); Gulewicz v. Cziesla, 366 So.2d 507 (Fla.2d DCA 1979); Willis v. L. W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla.2d DCA 1977) (all holding that the trial court should reject affidavit filed on rehearing of summary judgment unless exig......
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