SADIE R. BERROL, APPELLANT,
v.
CONCORD FLORIDA, INC., ET AL., APPELLEES
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The court held that the trial court abused its discretion by refusing to accept an affidavit submitted with a motion for rehearing.
Plaintiff sued two defendants for injuries sustained in a slip and fall, alleging negligence in floor refurbishment and mopping. The terrazzo company …
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PER CURIAM.
The plaintiff-appellant appeals a summary final judgment for the defendant, Ace Terrazzo Company. Appellant’s complaint alleged that the defendant terrazzo company had refurbished the floor of the Concord Cafeteria in such a manner as to cause it to be slippery; that the defendant Concord Florida, Inc., washed or mopped the floor to remedy the slippery condition thus creating a wet condition; that as a result of the joint and/or several negligence and carelessness of the two defendants, the plaintiff, an elderly woman, was caused to slip and fall, thereby sustaining serious injuries.
The defendant terrazzo company moved for summary judgment, and after a hearing, the judgment was entered. Thereafter, a timely motion for rehearing was filed by the plaintiff. The. motion was accompanied by an affidavit which plaintiff’s counsel asked the court to accept and consider on rehearing. The trial court denied the plaintiff’s motion for rehearing and refused to accept the affidavit.
Following our decision in National Properties, Inc., v. Ballenger Corporation, Fla.App.1973, 277 So. 2d 29, and the cases cited therein, we find that the court abused its discretion by refusing to accept the affidavit in support of the motion for rehearing, which affidavit in our opinion creates a genuine issue of fact.
Accordingly, we, reverse the summary final judgment and remand the cause to the trial court for further proceedings consistent herewith.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Willis v. L. W. Foster Sportswear Co., Inc., 352 So. 2d 922 (Fla. 2d DCA 1977)…hat a trial court does not have the discretion to ignore an affidavit filed with a motion for rehearing merely on the grounds that the affidavit was not filed prior to the hearing on the motion for summary judgment. See Berrol v. Concord Fla., Inc., 305 So. 2d 310 (Fla.3d DCA 1974); National Properties, Inc. v. Ballenger Corp., 277 So. 2d 29 (Fla.3d DCA 1973). We believe these holdings go too far, and are based on an erroneous interpretation of the obiter dictum in Holl v. Talcott, 191 So. 2d 40 (Fla.1966). I…
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Nichols v. Martell, 612 So. 2d 657 (Fla. 3d DCA 1993)…reed that such an evidentiary hearing should have been held under these circumstances. See Holl v. Talcott, 191 So. 2d 40, 46-47 (Fla.1966); Wiskeman v. First Bank of Hollywood Beach, 405 So. 2d 1044 (Fla. 3d DCA 1981); Berrol v. Concord Fla., Inc., 305 So. 2d 310 (Fla. 3d DCA 1974). [*659] The final order under review is reversed and the cause is remanded to the trial court with directions to conduct an evidentiary hearing on whether the plaintiffs’ counsel had the authority from the plaintiffs to make the a…
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Hatmaker v. Advance Mortg. Corp., 351 So. 2d 728 (Fla. 4th DCA 1977)…court refused to accept the affidavit. After hearing the arguments of counsel on the motion for rehearing the court entered an order denying the motion. We find that the trial court in so doing abused its discretion. Berrol v. Concord Florida, Inc., 305 So. 2d 310 (Fla. 3d DCA 1974); National Properties, Inc. v. Ballenger Corp., 277 So. 2d 29 (Fla. 3d DCA 1973); Holl v. Talcott, 191 So. 2d 40 (Fla.1966). REVERSED and REMANDED. ALDERMAN, C. J., CROSS, J., and MILLER, ROBERT P., Associate Judge, concur.…
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- Green v. State, 277 So. 2d 29 (Fla. 1st DCA 1973)