INDEPENDENT FIRE INSURANCE COMPANY, APPELLANT,
v.
MELINDA ROGERS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTOPHER ROGERS, DECEASED, RONALD S. GURALNICK, AND RONALD S. GURALNICK, P.A., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Independent Fire Insurance Company appeals a summary judgment awarding $10,000 to the estate representative of a decedent who died in a fire, based on an alleged settlement agreement. The court affirms, holding that the trial court did not abuse its discretion in striking Independent's untimely affidavit opposing the summary judgment.
The trial court did not abuse its discretion in finding the affidavit untimely and striking it. Accordingly, the summary judgment in favor of Rogers for $10,000 is affirmed.
[1] A trial court does not abuse its discretion by striking an affidavit that is untimely filed.
[2] A settlement agreement can be binding even if the plaintiff relies on it to their detriment by allowing a statute of limitations to expire.
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 find that the trial court did not abuse its discretion in finding that the affidavit was untimely.”
Establishes the standard of review and the court's conclusion on the central issue—whether the trial court properly rejected Independent's late-filed affidavit.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMelinda Rogers, personal representative of an estate, sought summary judgment claiming she had entered into a $10,000 settlement agreement with Indepe…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Extension Of Time cases and more on FLexlaw
PER CURIAM.
Appellant, Independent Fire Insurance Company (Independent) appeals a final summary judgment finding it liable under a settlement agreement. We affirm.
Appellee, Melinda Rogers (Rogers), is the personal representative of an estate. The decedent died in a fire caused by Independent’s insured, on premises insured by Independent.
In her motion for summary judgment, Rogers alleged that her attorney and the attorney for Independent had entered into a settlement agreement for $10,000. She further alleged that relying on that settlement agreement she did not file a cause of action, ultimately allowing the statute of limitations to expire.
Sometime after her motion, but before any hearing, Rogers filed a “notice of filing affidavit” and an affidavit of her attorney recounting the terms and circumstances surrounding the settlement agreement. Three days prior to the scheduled hearing, Independent filed an affidavit by Independent’s attorney alleging that although it initially had offered to settle, Independent considered the offer repudiated by Rogers’ failure to execute the required releases and by her attorney’s demands for discovery of financial information of its insured's estate.
At the hearing, Rogers objected to Independent’s affidavit as untimely because it was mailed three days before the hearing (mailed on a Friday for a Monday hearing). The trial court gave the parties ten days to file memoranda of law on the issue.
Within the ten day period, Independent sought an extension of time within which to serve its previously filed attorney’s affidavit. In support of its motion, Independent asserted that: (1) the affidavit had been timely served by mail three days before the summary judgment hearing; (2) the delay was excusable because its attorney had a death in the family; and (3) the motion for extension of time was timely because the issue underlying the summary judgment had not yet been ruled upon.
The trial court ultimately sustained Rogers’s objection and struck Independent’s affidavit. The trial court then entered a summary judgment in favor of Rogers for $10,000. We find that the trial court did not abuse its discretion in finding that the affidavit was untimely. See Von Zamft v. South Florida Water Management District, 489 So. 2d 779 (Fla. 2d DCA), rev. denied, 494 So. 2d 1153 (Fla.1986), receded from in part on other grounds, Burton v. GOV Contracting Comp., 552 So. 2d 293 (Fla. 2d DCA 1989); Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968). Accordingly, we affirm.
Affirmed.
BASKIN and GERSTEN, JJ., concur.
COPE, Judge
(specially concurring).
I join the majority opinion and the conclusion that service of the affidavit was untimely. Appellant also argues that the trial court should have granted a belated extension of time. That motion was addressed to the sound discretion of the trial court. In this case the affidavit was executed and filed on Friday before the Monday hearing. It was served by mail on opposing counsel, rather than by hand delivery. We have no transcript of the proceedings below and no elucidation of the circumstances referred to in the motion for belated extension. On this sparse record appellant has not shown an abuse of the trial court’s discretion. See Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla.1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Nelson v. Caron Balkany, 620 So. 2d 1138 (Fla. 3d DCA 1993)…nd to affidavits in support of the summary judgment which were filed only five days prior to the hearing on the motion, in violation of rule 1.510, Florida Rule of Civil Procedure. Both acts were prejudicial. See Independent Fire Ins. Co. v. Rogers, 580 So. 2d 229 (Fla. 3d DCA1991); Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA1989). Reversed and remanded for further consistent proceedings.…
-
Deshazior v. Sch. Bd. OF Miami-Dade Cnty., 217 So. 3d 151 (Fla. 3d DCA 2017)…providing that evidence in opposition to summary judgment must be served at least five days prior to the day of the hearing or delivered no later than 5:00 p.m. two business days prior to the day of the hearing); Independent Fire Ins. Co. v. Rogers, 580 So. 2d 229 (Fla. 3d DCA 1991) (holding that trial court’s decision not to consider untimely affidavit in opposition to motion for summary judgment was not an abuse of discretion); Binford v. City of Winter Springs, 969 So. 2d 1098, 1099 (Fla. 5th DCA 2007) (ob…
-
Emilio Dirube v. Cap. Bank, 648 So. 2d 860 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. Fla.R.Civ.P. 1.510(c), (f). Independent Fire Insurance Company v. Rogers, 580 So. 2d 229 (Fla. 3d DCA 1991); Slachter v. Abundio Inv. Co., 566 So. 2d 348 (Fla. 3d DCA 1990); J.R. Carter v. Cessna Finance Corp., 498 So. 2d 1319 (Fla. 1st DCA 1989); Ahmed v. Travelers Indemnity Co., 516 So. 2d 40 (Fla. 3d DCA 1987); Onderko v. Advanced Au…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968)
- Spike von Zamft & GMMR, Inc. v. S. Fla. Water Mgmt. Dist., 489 So. 2d 779 (Fla. 2d DCA 1986)
- Burton v. GOV Contracting Corp., 552 So. 2d 293 (Fla. 2d DCA 1989)