MORRIS MACK, APPELLANT,
v.
COMMERCIAL INDUSTRIAL PARK, INC., APPELLEE
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The court held that exhibits attached to a summary judgment motion, which were not previously filed or authenticated by affidavit, cannot be considered by the court.
The defendant attached unfiled and unauthenticated exhibits to its motion for summary judgment. The plaintiff had no prior notification of these exhib…
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LETTS, Judge.
In support of a defendant’s motion for summary judgment, which was granted, the defendant attached to the motion exhibits consisting of contracts allegedly establishing the lack of existence of a material fact. We reverse.
The problem with these exhibits was that, prior to their appearance in the motion, they were not on file, not even mentioned in the pleadings and never alluded to in any depositions or interrogatories. In fact, their appearance as exhibits to the motion was the first notification of their existence. In addition, the exhibits were not accompanied by an affidavit in support of the motion which might have authenticated them and caused them to be properly filed under Florida Rule of Civil Procedure 1.510(e).
We note that under rule 1.510(c) “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions ON FILE together with the affidavits, if any, show that there is no genuine issue as to any material fact_” (emphasis supplied.) In our opinion the exhibits, unsupported by affidavits, or the record, were not “on file” at the time the motion was made. Furthermore, under rule 1.130(a) and the facts of this case, these exhibits ought to have been attached to the pleadings. See DeMesme v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986).
We are not unaware that an affidavit in support of the same motion was filed twelve days before the hearing. This also was inadequate. Any such affidavit should have been filed with the motion at least twenty days before the hearing. Coastal Caribbean Corp. v. Rawlings, 361 So. 2d 719 (Fla. 4th DCA 1978).
Accordingly, the final summary judgment must be reversed. However, since a motion for summary judgment may be moved for “at any time” (rule 1.510(a)), this opinion does not preclude a re-filing of such motion if and when the necessary legal documents are before the court.
REVERSED AND REMANDED.
GLICKSTEIN and WARNER, JJ., concur.
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Guiseppe Servedio v. US Bank Nat'l Ass'n, 46 So. 3d 1105 (Fla. 4th DCA 2010)…wenty days before the hearing as required by Rules 1.510(c) and 1.510(e). Appellee’s failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So. 3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989). Accordingly, we reverse the entry of final summary judgment in favor of appel-lee and remand for further proceedings. We note that a summary judgment motion may be filed “at any time” under Rule 1.510(a), and “this opinion does…
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Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997)…idavit, but they had already been served several months before and we find no prejudice to the appellant. We also stated the following in reversing a summary judgment for failure to comply with rule 1.510(e) in Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989): In support of a defendant’s motion for summary judgment, which was granted, the defendant attached to the motion exhibits consisting of contracts allegedly establishing the lack of existence of a material fact. We reverse. The…
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Holland v. Anheuser Busch, Inc., 643 So. 2d 621 (Fla. 2d DCA 1994)…ed on the supplemental affidavit that attempted to cure this date deficiency, such reliance was contrary to rule 1.510(c) in that this affidavit was not filed within twenty days of the hearing on the motion. Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989). Finally, there is nothing in the record to establish that Holland consented or stipulated to the trial court treating the motion to dismiss as a motion for summary judgment. Thus, Toffel v. Baugher, 111 So. 2d 290 (Fla. 2d DCA…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Darius DeMESME v. Sam E. Stephenson, Jr., M.D., 498 So. 2d 673 (Fla. 1st DCA 1986)
- State v. Berbini, 361 So. 2d 719 (Fla. 4th DCA 1978)