ELISA FERNANDES, APPELLANT,
v.
DONNA BOISVERT, N/K/A DONNA LOVING, ALAN BOISVERT, TERESA BOISVERT, DONALD HOUGH, II, ANDREW BOISVERT, ESTATE OF MARY HENSBERRY, AND MARGARET LOVING, APPELLEES

Fla. 2d DCA | 1995-08-04
No. 93-04000
PARKER, A.C.J., and QUINCE, J., concur.
659 So. 2d 412 Florida District Court of Appeal, Second District (1995) Positive Treatment
Cited by 16 cases

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.


Holding

The court held that the trial court abused its discretion by refusing to consider the plaintiff's affidavit on rehearing, which was filed late due to attorney error.


Headnotes

[1] A trial court abuses its discretion by refusing to consider a controverting affidavit on rehearing when the affidavit, if timely filed, would have raised an issue of mate…

[2] A party seeking to avoid summary judgment must present a controverting affidavit or move for a continuance to obtain one prior to the hearing.

Previewing 2 of 4 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

Facts & Procedural History

The plaintiff sued for personal injuries, alleging the defendants failed to warn her of her attacker's unstable emotional condition. The defendant mov…

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.


Opinion of the Court
PATTERSON, Judge.

PATTERSON, Judge.

Elisa Fernandes appeals from a final summary judgment rendered in favor of the appellees. We reverse.

In January 1993, Fernandes’ attorney filed on Fernandes’ behalf a complaint for personal injuries in the Hillsborough County Circuit Court.1 The complaint asserted that while Fernandes was an invitee of the appellees’ residential property in Pinellas County2 she was severely beaten by her former boyfriend, Tod Loving. The complaint contended that the appellees failed to warn Fernandes of Loving’s unstable emotional condition and failed to intervene or otherwise assist Fer-nandes during the beating. Appellee Donna Boisvert answered, asserting defenses of im proper venue, failure to state a cause of action,3 and the running of the statute of limitations.

Boisvert served a motion for summary judgment4 supported by an affidavit in proper form which asserted that she had no knowledge of Tod Loving’s emotional condition and was not aware of the incident until after it had occurred. In response, Fer-nandes’ attorney filed an ambiguous writing entitled “Notice of Filing” to which he attached an affidavit of a “security consultant” relating to the duty of care of a landowner and a two-paragraph statement handwritten by Fernandes which was taped to a piece of paper and notarized. The statement related to Fernandes’ residence on the date of the incident. Although bearing the seal and signature of a notary public, the writing bears no resemblance to an affidavit. Fernandes’ attorney did not file or serve an affidavit pursuant to Florida Rule of Civil Procedure 1.510 seeking additional time to obtain an affidavit from Fernandes or move for a continuance of the hearing on the motion. Confronted with the disarray of Fernandes’ “pleadings,” the trial court understandably granted summary judgment in Boisvert’s favor. Fernandes’ attorney then filed a vague and rambling “Request for Reconsideration” which the trial court graciously treated as a motion for rehearing pursuant to Florida Rule of Civil Procedure 1.5B0. In support of this “motion,” the attorney then filed an affidavit by Fernandes which controverted Bois-vert’s affidavit. If this affidavit had been filed and served pursuant to rule 1.510 prior to the hearing on Boisvert’s motion for summary judgment, it would have raised an issue of material fact precluding summary judgment. Upon rehearing, the trial court de-dined to consider this affidavit and denied the motion.

We are thus confronted with the question of whether the trial court abused its discretion in refusing to rescue Fernandes from the apparent incompetence of her lawyer.5 We recognize the broad discretion of the trial court in matters of this kind. While we do not know the underlying reasons which compelled the attorney to pursue this matter in the way he did, it is apparent to us that something has gone awry. Therefore, in light of the unique circumstances presented here, we determine 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 one-page single-spaced pleading, although marginally stating a cause of action, failed to contain allegations of special damages as required by Florida Rule of Civil Procedure 1.120(g).

. The record reflects that Hillsborough County is not a proper venue. The appellees challenged venue by motion, but did not pursue the motion to a hearing.

. There was no hearing on these defenses as is permitted by Florida Rule of Civil Procedure 1.140(d).

. Although the record is incomplete, it appears that none of the other defendants appearing in the style of the case were served or made an appearance.

. We have had the opportunity to observe Fer-nandes’ attorney, who has been a member of the Florida Bar since 1983, in the oral argument of this case and do not question his sincerity in attempting to represent his client. This court, however, has imposed sanctions against this attorney in the form of required completion of ten hours of CLE credit in appellate practice for his repeated violation of the appellate rules. See Keene v. Nudera, 20 Fla.L.Weekly D1232, - So. 2d - (Fla. 2d DCA May 19, 1995). We know of no CLE program which would address the errors of the fundamentals of pleading and procedure that appear here.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kaynan Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269 (Fla. 1st DCA 2012)
    …appeal. Rule 1.530 is not limited to a mistake the court has made. To the contrary, rehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers. In Fernandes v. Boisvert, 659 So. 2d 412, 413 (Fla. 2d DCA 1995), for example, the appellate court held that the trial court abused its discretion by declining to consider an affidavit presented for the first time on rehearing. The affidavit did not contain any information that would quali…
  • Fatherly v. Cal. Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997)
    …hould have had no bearing on the court’s consideration of her motion for rehearing. In this regard we note that when the circuit court denied Fatherly’s motion it likely was unaware of this court’s decision two days earlier in Fernandes v. Boisvert, 659 So. 2d 412 (Fla. 2d DCA 1995). In that case, as in this one, counsel for the party opposing summary judgment failed to file an affidavit in opposition to the motion prior to the hearing. After the court granted summary judgment, counsel filed a motion for rehe…
  • AC Holdings 2006, Inc. v. McCARTY, 985 So. 2d 1123 (Fla. 3d DCA 2008)
    …d District, the Court of Appeal reversed summary judgments after the trial court rejected affidavits submitted on rehearing. See Fatherly v. Ca. Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997) (a mortgage foreclosure case); Fernandes v. Boisvert, 659 So. 2d 412 (Fla. 2d DCA 1995). In Fernandes, counsel’s incompetence was evident. The court observed that “something has gone awry.” Fernandes, 659 So. 2d at 413. Although recognizing the trial court’s broad discretion, the appellate court found that the trial…

Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw