NATHAN SICILIANO, APPELLANT,
v.
ARTHUR HUNERBERG, APPELLEE
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Defendant appeals from summary judgment on a promissory note that contained conflicting maturity date provisions. The court affirmed the summary judgment on the note itself but reversed the award of attorney's fees, holding that the trial court erred by determining the attorney's fee amount in an ex parte proceeding without affording the defendant an opportunity to contest it.
The court held that while summary judgment on the underlying note was proper, the trial court erred in determining the attorney's fee amount in an ex parte proceeding without affording the defendant an adversary hearing on that issue. The final judgment on attorney's fees was vacated and remanded for trial on the fee issue.
“We hold that the lower court was in error in the procedure used in awarding the attorney's fee to the plaintiff-appellee without an adversary proceedings to which the appellant was entitled on this question.”
The core holding establishing that ex parte proceedings for determining attorney's fees violate due process rights when the defendant is denied the opportunity to contest the fee.
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Join FLexlaw to unlock all legal intelligenceSiciliano executed a promissory note to Hunerberg containing language indicating both a maturity date of July 1, 1960, and a provision that the note w…
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This appeal is from a summary final judgment in favor of the plaintiff below in an action based upon a promissory note with provision therein for an attorney’s fee.
The note contained language to indicate a maturity date of July 1, 1960. There was also other language therein indicating that the note would not mature until property known as Gateway Apartments were sold.
On the motion for summary judgment and affidavits in support thereof, the trial judge construed the note as having a maturity date of July 1, 1960, and construed the following:
“In the event of a sale of the property known as Gateway Apartments, Inc., on or before the expiration date of this note, said note shall become due and payable.”
as providing for an acceleration of the due date in the event the' property mentioned therein-was sold -before the 1st of July, 1960.
The appellant complains of the refusal of the trial judge to consider affidavits in opposition to the motion for summary judgment although it is admitted that they were not filed prior to the hearing as required by the procedure rules.
We affirm the trial court as to granting a summary judgment on the note in question.
However, we must reverse the trial judge on his determination of a reasonable attorney’s fee for the appellee. The record discloses that the following order was entered:
“This Cause was duly presented by counsel, after notice, and, upon consideration thereof, it is
“Ordered and Adjudged that:
“1. Motion for Summary Judgment is granted;
“2. The Plaintiff shall submit two Affidavits as to reasonable attorney’s fees, together with a form of Final Judgment for entry by the Court ex parte and without notice.”
Subsequently the appellee submitted affidavits of two Miami Beach attorneys that a reasonable attorney’s fee would be $500. Based on the affidavits, the court entered final judgment in the sum of $3,000 as principal on the note and $500 as a reasonable attorney’s fee.
The appellant, defendant below, had filed an answer denying various allegations of the complaint and assigned error in this court to the ex parte proceedings culminating in an award for an attorney’s fee based on the two affidavits without appellant hav*752ing been afforded an opportunity to contest the attorney’s fee awarded.
We hold that the lower court was in error in the procedure used in awarding the attorney’s fee to the plaintiff-appellee without an adversary proceedings to which the appellant was entitled on this question.
We shall vacate the final judgment entered on the 10th day of November, 1960, but affirm the order granting the motion for summary judgment on the note. We direct the lower court to permit a trial on the issue as to the attorney’s fee on the remand of this case.
SHANNON, C. J., and WHITE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962)…idavits in opposition to motions for summary judgment must be filed prior to the day of hearing. 1.36(c), Florida Rules of Civil Procedure, 30 F.S.A.; Cleveland Trust Company v. Foster, Fla.1957, 93 So. 2d 112; Siciliano v. Hunerberg, Fla.App. 1961, 135 So. 2d 750. However, even considering that the affidavit filed by the appellant was timely filed, it failed to contain any facts and would not have buttressed the position of the appellant as it [the affidavit] could not meet the test enunciated in the authori…
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Haskell Liberman and Leatrice Liberman v. Rhyne, 248 So. 2d 242 (Fla. 3d DCA 1971)…versal of the "partial summary final judgment” were taken and filed subsequent to the hearing on March 30, 1970 and under these circumstances may not be considered on the motion for summary judgment. Cf. Siciliano v. Huner [*245] berg, Fla.App.1961, 135 So. 2d 750. The only documents which may be considered by the court on the motion for summary judgment are those which have been filed at the time of the motion unless the court reserves jurisdiction in order to permit additional pleadings, affidavits, or disc…
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Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968)…ontains essentially the same provision. . See F.R.C.P. 1.6(e); 1967 F.R.C.P. 1.090(e). . Cleveland Trust Company v. Foster, Fla. 1957, 93 So. 2d 112. gee also Humphrys v. Jarrell, Fla.App.1958, 104 So. 2d 404; Siciliano v. Hunerberg, Fla.App.1961, 135 So. 2d 750; and Hardcastle v. Mobley, Fla.App.1962, 143 So. 2d 715. . Fla.1956, 88 So. 2d 532. . That this problem has been recognized by the Supreme Court, see Ferrell Jewelers of Tampa, Inc. v. Southern Mill Creek Products Co., Inc., 205 So. 2d 657 opinion…
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