JOSE V. SILVA, ET AL., PETITIONERS,
v.
SERAFIN HERNANDEZ, RESPONDENT
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Florida Rule of Civil Procedure 1.510(c) requires opposing affidavits to be served at least one day before a hearing, but filing can occur on the day of the hearing as long as it is before commencement.
The court reviewed Silva v. Hernandez, which conflicted with Burton v. GOV Contracting Corp. regarding the timing of affidavit filings for summary jud…
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PER CURIAM.
We have for review Silva v. Hernandez, 595 So. 2d 230 (Fla. 3d DCA 1992), based on express and direct conflict with Burton v. GOV Contracting Corp., 552 So. 2d 293 (Fla. 2d DCA 1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. As to the conflict issue, we agree with the Burton court that Florida Rule of Civil Procedure 1.510(c) only requires that opposing affidavits be served at least one day prior to the day of the hearing. There is no requirement of actually filing the affidavit at a specific time so long as it is filed before the relevant hearing commences, even if filing occurs the same date as the hearing. To this extent, we approve Burton. We quash the opinion under review here and the various cases on which it relied,1 to the extent they are inconsistent with Burton and this opinion.2 We also note respondent’s argument that the trial court did not consider the affidavit and that even if the affidavit was considered, summary judgment for the respondent was proper. Accordingly, we remand with instructions that the district court shall consider the affidavit as being timely served and filed, and shall determine whether the summary judgment should have been granted. The question of attorney’s fees is not ripe for review and will not be addressed here.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur. . Hartford Accident & Indem. Co. v. Gillette, 519 So. 2d 1059 (Fla. 1st DCA 1988); Auerbach v. Alto, 281 So. 2d 567 (Fla. 3d DCA 1973), cert. denied, 297 So. 2d 31 (Fla.1974); Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962).
. Of course, if service will be effected by mail the affidavits must be mailed sufficiently in advance so that the expiration of five days from mailing will be prior to the day of the hearing. See Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968).
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Navellier v. Shortz, 207 So. 3d 287 (Fla. 4th DCA 2016)…come forward with facts contradicting those submitted by the mov-ant and demonstrating a real issue between the parties.” Hardcastle v. Mobley, 143 So. 2d 715, 717 (Fla. 3d DCA 1962) (emphasis added), abrogated on other grounds, Silva v. Hernandez, 612 So. 2d 1377 (Fla.1993); see also Page v. Staley, 226 So. 2d 129, 131 (Fla. 4th DCA 1969) (approving summary judgment where defendant sued for slander flatly denied under oath making defamatory statements, and plaintiff had no personal knowledge of the acts of s…
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Ruffenach v. Deutsche Bank Nat'l Tr. Co. for Ameriquest Mortg. Sec. Inc., 431 So. 3d 1055 (Fla. 6th DCA 2026)…2016); Schwartz, 88 So. 3d at 1071; Rodriguez v. Altomare, 261 So. 3d 590, 591–92 (Fla. 4th DCA 2018); Pridgen v. Agoado, 901 So. 2d 961, 962 (Fla. 2d DCA 2005); Silva v. Hernandez, 595 So. 2d 230, 230 (Fla. 3d DCA 1992), rev'd on other grounds by, 612 So. 2d 1377 (Fla. 1993). Since Lyle, other districts have occasionally discussed the logic behind the rule requiring expert testimony as to the reasonableness of attorneys' fees, and, as the Second District did, they justified the rule on the basis that the se…
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Jose v. Silva and Alma E. Silva, 616 So. 2d 195 (Fla. 3d DCA 1993)…PER CURIAM. We revisit this cause upon remand from the Florida Supreme Court. Silva v. Hernandez, 612 So. 2d 1377 (Fla.1993). Pursuant to the court’s directive, we have considered Silva’s affidavit as timely filed. The record demonstrates that Hernandez has failed to rebut Silva’s legally sufficient affirmative defense: genuine issues of material fact remain un…
Authorities Cited
- Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962)
- Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968)
- Lily Auerbach & Consol. Am. Ins. Co. v. Alto, 281 So. 2d 567 (Fla. 3d DCA 1973)
- Hartford Accident & Indem. Co. v. Gillette, 519 So. 2d 1059 (Fla. 1st DCA 1988)
- Burton v. GOV Contracting Corp., 552 So. 2d 293 (Fla. 2d DCA 1989)
- Arias v. Urban, 595 So. 2d 230 (Fla. 3d DCA 1992)
- Lily Auerbach v. James R. Alto et ux., 297 So. 2d 31 (Fla. 1974)
- Ballman v. State, 297 So. 2d 31 (Fla. 1974)
- Jose v. Silva and Alma E. Silva, 595 So. 2d 230 (Fla. 3d DCA 1992)