JULIA WALKER, APPELLANT,
v.
EVELYN FRANKLIN, APPELLEE
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PER CURIAM.
We reverse the entry of summary judgment for two reasons. First; the trial court erred in denying the motion to vacate because there was excusable neglect in the failure of appellant’s attorney to attend the summary judgment hearing. See Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA), rev. denied sub nom., Hayslip v. Somero, 476 So. 2d 674 (1985). There was a meritorious defense, and had the appellant’s counsel been present, counsel surely would have been able to point out the second reason for reversal, namely that the motion and affidavits do not negate all issues of material fact. See, e.g., Moore v. Morris, 475 So. 2d 666 (Fla.1985). This was a quiet title action where the appellant claimed that she had purchased property from appellee pursuant to a contract for deed. The appellee disputed this but did not negate all of the allegations of the complaint in her affidavit, particularly issues of payment. Finally, appellee’s contention that the contract for deed fails because of the failure to have two subscribing witnesses on the contract is without merit. Rosenthal v. Finger & Margolis, P.A., 460 So. 2d 993 (Fla. 4th DCA 1984).
Reversed.
GLICKSTEIN, WARNER and KLEIN, JJ., concur.
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Free v. Free, 936 So. 2d 699 (Fla. 5th DCA 2006)…A 2000); Martyn v. First Fed. Sav. & Loan Assn., 257 So. 2d 576 (Fla. 4th DCA 1971); see also Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984). Therefore, section 689.01 does not apply to mortgages, see Walker v. Franklin, 669 So. 2d 1088 (Fla. 4th DCA 1996) (rejecting appellant’s argument that the contract for deed failed because it was not signed by two witnesses); Rosenthal v. Finger & Margolis, P.A., 460 So. 2d 993 (Fla. 4th DCA 1984); Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2…
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Gascue v. HSBC Bank, 97 So. 3d 263 (Fla. 4th DCA 2012)…abuse of discretion in the instant case and must reverse. The failure of a defendant’s attorney to appear at a summary judgment hearing may constitute the type of “excusable neglect” that warrants relief under rule 1.540(b). See Walker v. Franklin, 669 So. 2d 1088 (Fla. 4th DCA 1996) (holding it was error to deny rule 1.540(b) relief when appellant’s attorney failed to attend a summary judgment hearing). Relief under rule 1.540(b) also requires the relief-seeking party to demonstrate a meritorious defense. A…
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Jerue v. Holladay, 945 So. 2d 589 (Fla. 2d DCA 2006)…e trial court’s discretion as to whether to grant such relief. Kroner v. Singer Asset Fin. Co., 814 So. 2d 454 (Fla. 4th DCA 2001). A trial court abuses that discretion by denying such relief when proper grounds are demonstrated. Walker v. Franklin, 669 So. 2d 1088 (Fla. 4th DCA 1996). In reviewing the decision of the trial court, the appellate court must apply a “reasonableness” test. Tenny v. Allen, 858 So. 2d 1192, 1195 (Fla. 5th DCA 2003). We conclude that the trial court here abused its discretion in den…
Authorities Cited
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Glenna Somero and Robert Somero v. Hendry Gen. Hosp., 467 So. 2d 1103 (Fla. 4th DCA 1985)
- Morton Rosenthal and Helen Rosenthal v. Finger & Margolis, P.A., 460 So. 2d 993 (Fla. 4th DCA 1984)