WOOD ET AL.
v.
KLEAVELAND ET AL.
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This case involves a dispute over an accounting where plaintiffs moved for summary judgment just four days after filing their amended complaint. The Florida Supreme Court reversed the lower court's summary judgment decree, holding that the motion was premature under the equity rules and that the affidavits were not properly served.
The summary judgment decree was improper because the motion was premature under Equity Rule 40(a), which requires 20 days to elapse from the commencement of the action before such a motion may be made. Additionally, the affidavits were not attached to or served with the motion as required by Equity Rule 40(e). Even if properly made, material disputed facts existed that could not be disposed of by summary judgment.
“A party seeking to recover upon a claim * * * may, at any time after the expiration of 20 days from the commencement of the action * * * move * * * for a * * * final decree in his favor”
States the equity rule requirement for a minimum 20-day waiting period before summary judgment can be sought
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed an amended complaint in equity for an accounting and other relief on June 9, 1952. Four days later, on the same date, plaintiffs move…
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DREW, Justice.
On June 9, 1952, four days after the amended complaint in equity for an accounting and other relief was filed in this cause, and before answer was due, the plaintiff moved for the entry of a summary judgment (not a summary final decree), •on the following grounds:
“1. That the depositions of record show that Plaintiffs are entitled to judgment in the amount prayed for in the Amended Bill of Complaint.
“2. That the depositions and admissions of record show that Plaintiffs are entitled to judgment in the amount prayed for in the Amended Bill of Complaint.
“3. That the depositions of record and the affidavits attached hereto show that the Plaintiffs are entitled to judgment in the amount prayed for in the Amended Bill of Complaint.”
The matter was heard by the lower court on June 20th (over the objections of the defendants), eleven days after the amended complaint was filed, and a summary final decree was rendered by the lower court on July 8th in which he substantially disposed of the litigation. It is from this summary judgment that this appeal is taken.
The decree appealed from is reversed for the following errors which appear from an examination of the record:
(1) 31 F.S.A. Equity Rule 40(a) provides that “A party seeking to recover upon a claim * * * may, at any time after the expiration of 20 days from the commencement of the action * * * move * * * for a * * * final decree in his favor”. Within the meaning and clear intention of this rule the “commencement of the action” was June 9, 1952, the date the amended bill of complaint was filed.
(2) The affidavits referred to in the motion were not attached to the motion or served therewith as required by Equity Rule 40(e).
Even had the motion been properly made, the affidavits offered at the hearing clearly established the existence of material disputed facts which could not properly be disposed of on motion for a summary final judgment.
Having determined that the decree of the lower court must be reversed for the reasons pointed out, it is unnecessary to pass on the other questions raised.
Reversed.
ROBERTS, C. J., and THOMAS and HOBSON, JJ., concur.
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The State Rd. Dept. OF Fla. v. Lewis, 79 So. 2d 699 (Fla. 1955)…, 75 So. 2d 693, 695, Mr. Justice Sebring said: “While a summary final decree should never be entered on bill and answer on the whole case so long as there remain undisposed of material disputed facts affecting the issues, Wood v. Kleaveland, Fla., 64 So. 2d 684, it is settled that where every material fact essential to a final decree in favor of one party is admitted by his adversary’s pleadings, or is established by a proper construction of all the pleadings, depositions, admissions, and affidavits on fil…
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Northside Bank OF Miami v. Jules la Melle and Adeline La Melle, 380 So. 2d 1322 (Fla. 3d DCA 1980)…ys prior to the time fixed for the hearing on their motion for summary judgment, required by Florida Rule of Civil Procedure 1.510(c), was immaterial because the same evidence was already before the court through depositions. See Wood v. Kleaveland, 64 So. 2d 684 (Fla.1953). Moreover, the mortgagee failed to file any counter-affidavits in opposition to the supporting evidence that the property had been continuously insured so as to avoid the consequences of an adverse summary judgment. Connell v. Sledge, 306…
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City OF Anna Maria v. Hackney, 75 So. 2d 693 (Fla. 1954)…sposed of “genuine issues as to material facts.” While a summary final decree should never be entered on bill and answer on the whole case so long as there remain undisposed of material disputed facts affecting the issues, Wood v. Kleaveland, Fla., 64 So. 2d 684, it is settled that where every material fact essential to a’ final decree in favor of one party is admitted by his adversary’s pleadings, or is established by a proper construction of all the pleadings, depositions, admissions, and affidavits on fi…
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