B & B CONSTRUCTION COMPANY OF OHIO, INC., AND THE CONTINENTAL INSURANCE COMPANY, APPELLANTS,
v.
RINKER MATERIALS CORPORATION, A CORPORATION, APPELLEE
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The court reversed a summary judgment for the appellee because genuine issues of material fact remained, and remanded the case while noting that attorney's fees determinations require an adversary hearing rather than reliance on affidavits alone.
Summary judgment was improper where genuine issues of material fact remained, and attorney's fees must be determined through an adversary hearing with opportunity for cross-examination.
[1] Attorney's fees in summary judgment cases must be determined through an adversary hearing with opportunity for cross-examination, not solely upon affidavit.
Previewing 1 of 1 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“the proper procedure for determining the amount of attorney's fees where summary judgment is entered is for the court to hold an adversary hearing, at which time counsel have an opportunity to adduce testimony directed to that issue”
The court explained the required procedure for awarding attorney's fees in summary judgment cases.
B & B Construction Company and Continental Insurance Company appealed a final summary judgment awarding the appellee $4,021.28 plus attorney's fees.…
The full statement of facts, procedural history, and disposition for this case are member content.
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DOWNEY, Judge.
This is an appeal from a final summary judgment for the appellee awarding it 4,021.28, together with attorney’s fees.
We are unable to determine from the record before us that there was no genuine issue of material fact remaining in the trial court. Accordingly, the cause must be reversed and remanded to the trial court, without prejudice to the rights of the parties to file further motions for summary judgment if it can be clearly demonstrated that there is no genuine issue of fact remaining.
Since the matter must be returned to the trial court, we feel it appropriate to call attention to the procedure followed in awarding attorney’s fees in the final judgment. Appellant complains that the amount of attorney’s fees was determined by the court based upon the affidavit of a member of the bar. No hearing was held and thus no opportunity for cross examination. We think the proper procedure for determining the amount of attorney’s fees where summary judgment is entered is for the court to hold an adversary hearing, at which time counsel have an opportunity to adduce testimony directed to that issue. See Siciliano v. Hunerberg, Fla.App.1961, 135 So. 2d 750; Boyette v. Reliable Finance Company, Fla.App.1966, 184 So. 2d 200. Of course, if the parties choose they may stipulate that the court set the amount of attorney’s fees upon presentation of affidavits.
Reversed and remanded.
WALDEN, J., and KNOTT, JAMES R.. Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gables Ins. Agency, Inc. v. Peninsula Fed. Sav. & Loan Ass'n, 442 So. 2d 1013 (Fla. 3d DCA 1983)…solely on affidavits presented for the first time at the hearing on the motion for summary judgment, since it afforded appellant no opportunity to adduce testimony on the issue of fees. B & B Construction Co. of Ohio, Inc. v. Rinker Materials Corp., 294 So. 2d 131 (Fla. 4th DCA 1974). Affirmed in part, reversed in part and remanded for further proceedings.…
Authorities Cited
- Siciliano v. Hunerberg, 135 So. 2d 750 (Fla. 2d DCA 1961)
- Fritz B. Boyette v. Reliable Fin. Co., 184 So. 2d 200 (Fla. 2d DCA 1966)