GEORGE HARDEMON, APPELLANT,
v.
ABRAHAM FISH, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Hardemon sought to cancel a deed allegedly executed by a grantor under the undue influence of grantee Fish. The trial court granted Fish's motion for summary judgment, but the appellate court reversed, finding that the trial judge improperly considered an affidavit from Fish's counsel and that genuine issues of material fact remained regarding the grantor's competence.
The summary judgment was improper and reversed. First, it was error for the trial court to consider the affidavit from Fish's counsel, as opposing counsel cannot provide affidavits in support of motions due to professional responsibility rules. Second, the deposition of Fish did not conclusively establish that Hardemon lacked a cause of action, so summary judgment was inappropriate.
[1] An attorney's affidavit supporting a motion for summary judgment is improper when it concerns the condition or competence of a party at the time of an event, as the attor…
[2] A motion for summary judgment must be denied if the movant fails to conclusively establish the right to judgment and if any controverted issue of material fact exists.
Previewing 2 of 3 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“It is elemental that the movant at all times carries the burden of clearly and unequivocally establishing the right to summary judgment, and that it cannot be granted if there exists any controverted issue of material fact or if the proofs supporting the motion fail to overcome every theory upon which, under the pleadings, the adversary's position might be sustained”
Establishes the legal standard for summary judgment—the moving party must conclusively eliminate all possible theories supporting the opposing party's position
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHardemon brought suit to cancel a deed allegedly executed by a grantor when the grantor was under the influence of grantee Fish and not competent to e…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burden Of Proof In Summary Judgment cases and more on FLexlaw
PER CURIAM.
By this appeal, plaintiff in the trial court seeks review of an adverse summary judgment dismissing a cause of action which sought, in effect, to cancel a deed allegedly executed by the grantor at a time when he was under the influence of the grantee and not competent to do such. The matter came on for hearing before the trial judge. The record consisted of a deposition of the grantee [Fish], an affidavit of Fish’s attorney, and an affidavit of the deceased grantor’s doctor. The summary judgment indicates it was granted in part on the “affidavits” in the file. We reverse.
First, it was inappropriate for counsel for the grantee [Fish] in the trial court to give an affidavit in support of the motion for summary judgment, because this is contrary to Canon 5, EC 5-9, DR 5-102, Code of Professional Responsibility; Millican v. Hunter, Fla.1954, 73 So. 2d 58; Hubbard v. Hubbard, Fla.App.1970, 233 So. 2d 150; In Re Estate of Freeman, Fla.App.1970, 240 So. 2d 656. Counsel would not have been permitted to testify at the trial because of these authorities and, therefore, the trial judge should not have considered his affidavit as to the condition or competence of the grantor at the time he executed the deed. Dean v. Gold Coast Theatres, Inc., Fla.App. 1963, 156 So. 2d 546; First Mortgage Corporation of Stuart v. deGive, Fla.App.1965, 177 So. 2d 741; Rule 1.510(e), R.C.P.
Second, from a reading of the deposition of the grantee [Fish] it does not appear conclusively that the plaintiff did not have a cause of action.
Therefore, it was error to grant the motion for summary judgment. Bishop v. City of Clear-water, Fla.App. 1972, 258 So. 2d 337; Williams v. Florida Realty & Management Co., Fla.App.1973, 272 So. 2d 176; Posey v. Pensacola Tractor & Equipment Company, Inc., Fla.App.1962, 138 So. 2d 777. In the last cited case, the following is found •
“It is elemental that the movant at all times carries the burden of clearly and unequivocally establishing the right to summary judgment, and that it cannot be granted if there exists any controverted issue of material fact or if the proofs supporting the motion fail to overcome every theory upon which, under the pleadings, the adversary’s position might be sustained [authorities cited]”.
For the reasons above stated, the summary judgment here under review be and the same is hereby reversed, with directions to grant the parties a trial on the issues as may be framed by the pleadings.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Allstate Ins. Co. v. English, 588 So. 2d 294 (Fla. 2d DCA 1991)…4th DCA 1990). On the contrary, Mr. Butler represented to the trial court that he would not be testifying on behalf of Allstate, and it is apparent that the letter attached to the motion for summary judgment was not necessary. Cf. Hardemon v. Fisk, 325 So. 2d 411 (Fla. 3d DCA 1976) (inappropriate for counsel to attach his affidavit in support of motion for summary judgment where affidavit went to material issue). Second, even if the respondents called Mr. Butler as their witness, there has been no showing a…
Authorities Cited
- Williams v. Fla. Realty & Mgmt. Co., 272 So. 2d 176 (Fla. 3d DCA 1973)
- Edsel Posey v. Pensacola Tractor & Equip. Co., Inc., 138 So. 2d 777 (Fla. 1st DCA 1962)
- First Mortg. Corp. OF Stuart v. Mary L. deGIVE, 177 So. 2d 741 (Fla. 2d DCA 1965)
- Jacksonville Terminal Co. v. Smith, 156 So. 2d 546 (Fla. 1st DCA 1963)
- Justina Dean v. Gold Coast Theatres, Inc., 156 So. 2d 546 (Fla. 2d DCA 1963)
- Millican v. Hunter, 73 So. 2d 58 (Fla. 1954)
- Hubbard v. Barrie Bassett Hubbard, 233 So. 2d 150 (Fla. 4th DCA 1970)
- Helyn Bishop v. City OF Clearwater, 258 So. 2d 337 (Fla. 2d DCA 1972)
- In re Est. of Merry A. Freeman, 240 So. 2d 656 (Fla. 3d DCA 1970)