RICHARD H. WISKEMAN, III, APPELLANT,
v.
FIRST BANK OF HOLLYWOOD BEACH, A FLORIDA BANKING ASSOCIATION, APPELLEE
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Wiskeman appealed a summary judgment entered against him on a personal guaranty claim. The appellate court reversed, holding that the trial court erred in refusing to consider Wiskeman's affidavit and deposition testimony filed with his motion for rehearing, which raised material factual issues precluding summary judgment.
The trial court erred in refusing to consider Wiskeman's affidavit and deposition testimony filed with his timely motion for rehearing. These materials supported affirmative defenses of revocation of the guaranty and abandonment of the bank's reliance on the guaranty, and raised issues of material fact that precluded summary judgment in favor of the bank.
[1] A trial court errs in refusing to consider an affidavit and deposition testimony filed with a timely motion for rehearing of a summary judgment.
[2] Affirmative defenses, such as revocation of a guaranty or abandonment of reliance on a guaranty, can raise issues of material fact precluding summary judgment.
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“the trial court erred in refusing to consider Wiskeman's affidavit and deposition testimony filed with his timely motion for rehearing of the judgment”
States the core holding—that affidavits and depositions filed with a timely motion for rehearing must be considered by the trial court.
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Join FLexlaw to unlock all legal intelligenceFirst Bank of Hollywood Beach obtained a summary final judgment against Wiskeman on a personal guaranty of a corporation's loan obligation. Wiskeman f…
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DANIEL S. PEARSON, Judge.
We reverse the summary final judgment entered against Wiskeman upon a holding that the trial court erred in refusing to consider Wiskeman’s affidavit and deposition testimony filed with his timely motion for rehearing of the judgment, Hatmaker v. Advance Mortgage Corporation, 351 So. 2d 728 (Fla. 4th DCA 1977); Berrol v. Concord Florida, Inc., 305 So. 2d 310 (Fla.3d DCA 1975); National Properties, Inc. v. Ballenger Corporation, 277 So. 2d 29 (Fla.3d DCA 1973); Fernandez v. Cunningham, 268 So. 2d 166 (Fla.3d DCA 1972); see Holl v. Talcott, 191 So. 2d 40 (Fla.1966); but see Coffman Realty, Inc. v. Tosohatchee Game 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 exigent circumstances exist to excuse the late filing), which affidavit and depositions supported Wiske-man’s appropriate affirmative defenses that he was not liable on his personal guaranty of a corporation’s loan obligation because (a) he had revoked the guaranty, see Miami National Bank v.
First International Realty Investment Corporation, 364 So. 2d 873 (Fla.3d DCA 1978); and (b) the bank had abandoned its reliance on the guaranty, see Burt v. Community National Bank of Bal Harbour, 142 So. 2d 118 (Fla.3d DCA 1962), and raised issues of material fact precluding summary judgment for the bank, Johnson & Kirby, Inc. v. Citizens National Bank of Fort Lauderdale, 338 So. 2d 905 (Fla.3d DCA 1976); Emile v.
First National Bank of Miami, 126 So. 2d 305 (Fla.3d DCA 1961).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nichols v. Martell, 612 So. 2d 657 (Fla. 3d DCA 1993)…Indeed, defense counsel on appeal has candidly and commendably agreed that such an evidentiary hearing should have been held under these circumstances. See Holl v. Talcott, 191 So. 2d 40, 46-47 (Fla.1966); Wiskeman v. First Bank of Hollywood Beach, 405 So. 2d 1044 (Fla. 3d DCA 1981); Berrol v. Concord Fla., Inc., 305 So. 2d 310 (Fla. 3d DCA 1974). [*659] The final order under review is reversed and the cause is remanded to the trial court with directions to conduct an evidentiary hearing on whether the plaint…
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Fernandes v. Boisvert, 659 So. 2d 412 (Fla. 2d DCA 1995)…that the trial court abused its discretion in refusing to consider Fernandes’ affidavit on rehearing. See Coastal States Mortgage Corp. v. Commonwealth Sav. & Loan Ass’n, 497 So. 2d 917 (Fla. 3d DCA 1986); Wiskeman v. First Bank of Hollywood Beach, 405 So. 2d 1044 (Fla. 3d DCA 1981); see also Tooke v. Downing, 564 So. 2d 250 (Fla. 1st DCA 1990). Accordingly, we vacate the final judgment and remand this case for disposition on the merits. Reversed and remanded. PARKER, A.C.J., and QUINCE, J., concur. . This…
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Olesh v. Greenberg, 978 So. 2d 238 (Fla. 5th DCA 2008)…that the trial court abused its discretion in refusing to consider Fernandes’ affidavit on rehearing. See Coastal States Mortgage Corp. v. Commonwealth Sav. & Loan Ass’n, 497 So. 2d 917 (Fla. 3d DCA 1986); Wiskeman v. First Bank of Hollywood Beach, 405 So. 2d 1044 (Fla. 3d DCA 1981); see also Tooke v. Downing, 564 So. 2d 250 (Fla. 1st DCA 1990). Accordingly, we vacate the final judgment and remand this case for disposition on the merits. Id. at 413 (footnote omitted). Two years later, in Fatherly v. Califor…
Authorities Cited (13 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980)
- Emile v. First Nat'l Bank OF Miami, 126 So. 2d 305 (Fla. 3d DCA 1961)
- Johnson & Kirby, Inc. v. Citizens Nat'l Bank OF Fort Lauderdale, 338 So. 2d 905 (Fla. 3d DCA 1976)
- Willis v. L. W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla. 2d DCA 1977)
- Marilyn Kay Fernandez as Administratrix CTA of the Estate of Sam Kay v. Cunningham, 268 So. 2d 166 (Fla. 3d DCA 1972)
- Green v. State, 277 So. 2d 29 (Fla. 1st DCA 1973)
- Miami Nat'l Bank v. First Int'l Realty Inv. Corp., 364 So. 2d 873 (Fla. 3d DCA 1978)
- Burt v. Cmty. Nat'l Bank OF BAL Harbour, 142 So. 2d 118 (Fla. 3d DCA 1962)
- Berrol v. Concord Fla., Inc., 305 So. 2d 310 (Fla. 3d DCA 1974)