CHARLES L. DECARLO, APPELLANT,
v.
CLEM H. SAMMONS, APPELLEE
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DeCarlo appeals a summary judgment awarding Sammons $4,500 in accountant's fees. The court reverses, finding that genuine issues of material fact exist regarding DeCarlo's personal liability and the quality of accounting work performed, and holds that DeCarlo should have been permitted to file a late compulsory counterclaim.
Summary judgment was improper because the record establishes genuine issues of material fact on both the liability question and the quality of accounting work. DeCarlo should have been permitted to file the late compulsory counterclaim, as no showing was made that it would delay trial and the matters were already presented in affirmative defenses.
[1] A summary judgment is improper when genuine issues of material fact exist regarding personal liability and the quality of professional services rendered.
[2] The entry of a summary judgment is not a proper vehicle for the disposition of faulty or insufficient pleadings.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We reverse the summary judgment because the pleadings, together with the answers to interrogatories and request for admissions, do not establish the absence of a genuine issue of material fact concerning: (1) whether the defendant agreed to be personally liable for services to certain corporations and (2) whether the accounting work for which the suit was brought was performed in a manner commensurate with the reasonable standards in the community for such work.”
Establishes the court's core holding that summary judgment was improper due to unresolved factual disputes on liability and quality of services
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Join FLexlaw to unlock all legal intelligenceSammons sued DeCarlo for accountant's fees totaling $4,500. The dispute involves whether DeCarlo agreed to be personally liable for accounting service…
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PEARSON, Judge.
Defendant Charles L. DeCarlo appeals a summary final judgment awarding plaintiff Clem L. Sammons $4,500.00 in a suit for accountant’s fees. A point on appeal urges that the trial court erred in its order denying the defendant’s requested permission to file a compulsory counterclaim.
We reverse the summary judgment because the pleadings, together with the answers to interrogatories and request for admissions, do not establish the absence of a genuine issue of material fact concerning: (1) whether the defendant agreed to be personally liable for services to certain corporations and (2) whether the accounting work for which the suit was brought was performed in a manner commensurate with the reasonable standards in the community for such work. It is well to note that no deposition or any discovery, other than the interrogatories and request for admissions, has been undertaken. See Roll v. Talcott, 191 So. 2d 40 (Fla.1966); and see Wills v. Sears, Roebuck & Company, 351 So. 2d 29 (Fla.1977); Commercial Union Insurance Company v. Bayfront Medical Center, 363 So. 2d 1124 (Fla. 2d DCA 1978); and O’Grady v. Wickman, 213 So. 2d 321 (Fla. 4th DCA 1968).
It is entirely possible that the trial court was influenced in this cause by the fact that the record is susceptible to a conclusion that the defendant has been dilatory and that the pleadings tendered may not be workmanlike in form and content. Nevertheless, the entry of a summary judgment is not a proper vehicle for the disposition of faulty or insufficient pleadings. See McClendon v. Key, 209 So. 2d 273 (Fla. 3d DCA 1968); and Curley v. Finest Homes, Inc., 167 So. 2d 739 (Fla. 2d DCA 1964).
We find merit in the defendant’s argument that he should have been permitted to file the compulsory counterclaim tendered just over two months prior to the hearing on the motion and summary judgment and prior to the setting of the trial of the cause. There is no showing in this record that the filing of the counterclaim, even though late in the development of the pleadings, would delay the trial of the cause, inasmuch as the matters alleged in the counterclaim had already been presented to the court in the affirmative defenses. See Fla.R.Civ.P. 1.190(a); and cf. Romish v. Albo, 291 So. 2d 24 (Fla. 3d DCA 1974).
Accordingly, the judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
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Plyser v. Demitri Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980)…with a “pigtail” connector provided by the homeowner. Whatever the shortcomings, if any, of appellants’ original complaint, entry of summary judgment is not the proper vehicle for disposition of faulty or inefficient pleadings. DeCarlo v. Sammons, 375 So. 2d 351 (Fla.3d DCA 1979); Booth v. Mary Carter Paint Co., 182 So. 2d 292 (Fla.2d DCA 1966). The extensive record below reflects disputed issues of fact precluding summary judgment; specifically, whether the faulty electrical connection was an obvious or hi…
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Avenada, Inc. v. City Nat'l Bank OF Lauderhill, 375 So. 2d 883 (Fla. 3d DCA 1979)…the bank would have sustained no prejudice whatever had the motion been granted. Florida Power & Light Co. v. Crabtree Construction Co., Inc., supra, so held on facts essentially identical to those involved in this case. See also DeCarlo v. Sammons, 375 So. 2d 351 (Fla. 3d DCA 1979); Greenburg v. Johnston, 367 So. 2d 229 (Fla. 2d DCA 1979); Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977). Since the amended answer was therefore properly before the court,1 it was…
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Costin v. Malone, 402 So. 2d 1257 (Fla. 1st DCA 1981)…title action. Gates v. Utsey, 177 So. 2d 486 (Fla. 1st DCA 1965). However, summary judgment is not a proper vehicle for the disposition of faulty or inefficient pleadings.2 See Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980); DeCarlo v. Sammons, 375 So. 2d 351 (Fla. 3d DCA 1979); Booth v. Mary Carter Paint Co., 182 So. 2d 292 (Fla. 2d DCA 1966). Moreover, the appellees did not meet their burden essential to obtain a summary judgment. The moving party for summary judgment must prove the non-existence of a…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Lampman v. City OF N. Miami, 209 So. 2d 273 (Fla. 3d DCA 1968)
- O'Grady v. Wickman, 213 So. 2d 321 (Fla. 4th DCA 1968)
- Romish v. Albo, 291 So. 2d 24 (Fla. 3d DCA 1974)
- Curley v. Finest Homes, Inc., 167 So. 2d 739 (Fla. 2d DCA 1964)
- Commercial Union Ins. Co. & Otis Elevator Co. v. Bayfront Med. Ctr., 363 So. 2d 1124 (Fla. 2d DCA 1978)