THE HOWARTH TRUST, BY AND THROUGH ITS MANAGING TRUSTEE, CATHERINE H. CARTER, ET AL., APPELLANTS,
v.
MARY S. HOWARTH, APPELLEE
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The trial court lacked authority to grant a motion for summary judgment after trial had commenced; the appellate court reversed and remanded for trial continuation.
A motion for summary judgment cannot be granted after trial has commenced because summary judgment proceedings are pretrial in character.
[1] A motion for summary judgment cannot be considered or granted after trial has commenced, as summary judgment is a pretrial procedure designed to eliminate cases lacking g…
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Join FLexlaw to unlock all legal intelligence“Summary judgment proceedings are essentially pretrial in character. Their principal function is to avoid the time and expense of a useless trial if it clearly appears from the pleadings, affidavits, depositions and other evidence in the record that there is no genuine issue of any material fact...”
The court cited Fish Carburetor Corporation v. Great American Insurance Company to establish that summary judgment motions must be made at a stage that will not delay trial.
The Howarth Trust, through its managing trustee Catherine Carter, sued Mary Howarth regarding trust assets and management. After six days of trial tes…
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MILLS, Judge.
This litigation arises out of claims, counterclaims and cross-claims concerning the assets and management of a trust. Trial had progressed through six days of testimony when appellee, defendant below, filed a motion for summary judgment on that count of her second amended counterclaim and cross-claim seeking an accounting from appellants Catherine Carter and Brinly Carter, plaintiff and counter-defendant below. The trial court granted the motion for summary judgment and appellants have taken this interlocutory appeal.
The issue here is whether the trial court had authority to consider appellee’s motion for summary judgment after the trial commenced. The trial court did not have authority to consider or grant the motion for summary judgment after the commencement of trial.
This Court stated in Fish Carburetor Corporation v. Great American Insurance Company, Fla.App., 125 So. 2d 889:
“Summary judgment proceedings are essentially pretrial in character. Their principal function is to avoid the time and expense of a useless trial if it clearly appears from the pleadings, affidavits, depositions and other evidence in the record that there is no genuine issue of any material fact, and the moving party is entitled to judgment as a matter of law. The motion for summary judgment should be made and pressed at such a stage in the litigation that it will not delay the trial. When m due course the trial is had on the merits, the trial itself becomes the best test of either party’s right to judgment. . . . ”
Reversed and remanded for continuation of the trial.
McCORD, j., concurs.
BOYER, Acting C. J., concurs specially.
BOYER, Acting Chief Judge
(concurring specially).
I fully concur with the foregoing decision and opinion. However, I feel it also pertinent to point out that Rule 1.510(c) RCP specifically provides that “the motion shall be served at least twenty days before the time fixed for the hearing.”
Cases With Similar Vibessemantic neighbors from the corpus
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Gutierrez v. Yraida Leyva Bermudez, 540 So. 2d 888 (Fla. 5th DCA 1989)…uch a stage in the litigation that it will not delay the trial. When in due course the trial is had on the merits, the trial itself becomes the best test of either party’s right to judgment....” 125 So. 2d at 891. See also Howarth Trust v. Howarth, 310 So. 2d 57 (Fla. 1st DCA 1975); United States Rubber Co. v. Jefferson Realty, 208 So. 2d 110 (Fla. 3d DCA 1968); Busbee-Bailey Tomato Co. v. Bailey, 463 So. 2d 1255 (Fla. 1st DCA 1985). Once trial commences, a defendant tests the sufficiency of the plaintiff’s…
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Suggs v. Elliott Allen and Trisha Allen, 563 So. 2d 1132 (Fla. 1st DCA 1990)…no genuine issue of any material fact, and the moving party is entitled to judgment as a matter of law.” Fish Carburetor Corp. v. Great American Insurance Co., 125 So. 2d 889, 891 (Fla. 1st DCA 1961), quoted with approval, Howarth Trust v. Howarth, 310 So. 2d 57, 58 (Fla. 1st DCA 1975). See also, Busbee-Bailey Tomato Co. v. Bailey, 463 So. 2d 1255 (Fla. 1st DCA 1985). By contrast, a directed .verdict is the means by which the sufficiency of the evidence already adduced at trial is tested. Obviously, whether…
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Zygmont v. Smith, 548 So. 2d 902 (Fla. 1st DCA 1989)…no genuine issue of any material fact, and the moving party is entitled to judgment as a matter of law.” Fish Carburetor Corp. v. Great American Insurance Co., 125 So. 2d 889, 891 (Fla. 1st DCA 1961), quoted with approval, Howarth Trust v. Howarth, 310 So. 2d 57, 58 (Fla. 1st DCA 1975). See also, Busbee-Bailey Tomato Co. v. Bailey, 463 So. 2d 1255 (Fla. 1st DCA 1985). By contrast, a directed verdict is the means by which the sufficiency of the evidence already adduced at trial is tested. Obviously, whether…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fish Carburetor Corp. v. Great Am. Ins. Co., 125 So. 2d 889 (Fla. 1st DCA 1961)