THEODORE R. NELSON, EDWARD PORTER, AND EDNA GENE DAVIDSON, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVES OF THE ESTATE OF JORDAN DAVIDSON, DECEASED, APPELLANTS,
v.
CARON BALKANY, TRUSTEE, APPELLEE
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The court held that summary judgment was improperly entered because material factual issues remained and procedural rules were violated.
Plaintiff sued for fraud after purchasing land. The seller allegedly failed to obtain the correct zoning and provided inaccurate acreage reports.…
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PER CURIAM.
Caron Balkany commenced this fraud action as co-trustee on behalf of holders of undivided beneficial interests in land trusts, against the appellants individually and as personal representatives of the estate of the seller. This appeal is brought from a summary judgment entered against the defendants individually and in their representative capacities. We reverse.
A summary judgment should not have been entered against the defendants for a number of reasons, including: (1) a material factual issue was presented on whether the “Office Institutional” zoning obtained satisfied the contractual obligation of the seller to effect a zoning charge from rural residential to “commercial”; and (2) a material issue of fact was presented on whether the appellee sustained any damage owing to discrepancies in two reports of a single surveyor indicating the actual acreage conveyed. A mov-ant for a summary judgment must demonstrate, conclusively, the nonexistence of a genuine issue of any material fact. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Pratt’s Office Supplies, Inc. v. Bird Bowl Invs., 565 So. 2d 795 (Fla. 3d DCA1990).
Procedurally, the hearing on the motion for summary judgment, which rested on a theory different from that which was pleaded, was held less than twenty-five days after the filing and mailing of the motion, in violation of rules 1.090(e) and 1.510(c), Florida Rules of Civil Procedure. Additionally, the non-movant had insufficient time to respond 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.
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Gulliver v. Tex. Commerce Bank, 787 So. 2d 256 (Fla. 5th DCA 2001)…nity for hearing.” Id. at 1234 (emphasis added). This construction of the phrase “may permit supplemental affidavits” properly advances the policy that a party opposing summary judgement must be given adequate time to respond. See Nelson v. Balkany, 620 So. 2d 1138 (Fla. 3d DCA 1993); Coastal Caribbean Corp. v. Rawlings, 361 So. 2d 719 (Fla. 4th DCA 1978). Here, the trial court’s consideration of the appellee’s supplemental affidavit was improper because no written stipulation was submitted, and no leave of co…
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Kanov v. Jean Bitz, M.D., 660 So. 2d 1165 (Fla. 3d DCA 1995)…of summary judgment. See Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Underwriters at Lloyds, London v. VIP Distribs., Inc., 629 So. 2d 291 (Fla. 3d DCA 1993); Henry v. ISS Int’l Serv. Sys., Inc., 627 So. 2d 115 (Fla. 3d DCA 1993); Nelson v. Balkany, 620 So. 2d 1138 (Fla. 3d DCA 1993). We find no merit to the remaining points on appeal. Affirmed in part and reversed and remanded in part.…
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C.E. Huffman Trucking, Inc. v. RED Cedar Corp., 723 So. 2d 296 (Fla. 2d DCA 1998)…ty must be reversed for two reasons. [*298] First, over the County’s objection, the motion •was heard only twenty days after it was served by mail, in violation of rules 1.090(e) and 1.510(c), Florida Rules of Civil Procedure. See Nelson v. Balkany, 620 So. 2d 1138, 1139 (Fla. 3d DCA 1993) (holding that scheduling of hearing on motion for summary judgment less than 25 days after filing and mailing of motion was prejudicial error, requiring that judgment be set aside, particularly where hearing rested on theory…
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)
- Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989)
- Pratt's Off. Supplies, Inc. v. Bird Bowl Invs., 565 So. 2d 795 (Fla. 3d DCA 1990)
- Indep. Fire Ins. Co. v. Rogers, 580 So. 2d 229 (Fla. 3d DCA 1991)