THOMAS G. ELLIS, APPELLANT,
v.
BARNETT BANK OF LAKELAND, APPELLEE
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The court reversed a portion of a summary judgment foreclosure decree that awarded attorney's fees to the bank because the trial court improperly considered an affidavit on attorney's fees submitted three months after the summary judgment hearing without court approval or notice to the defendant guarantor. The case addresses procedural requirements for supplementing affidavits in summary judgment proceedings.
The trial court lacked authority to award attorney's fees under these circumstances. Because the affidavit was submitted after the hearing without clear indication on the record that supplemental affidavits would be permitted, and Ellis received no notice that it would be considered, the court erred in awarding fees without giving Ellis notice and an opportunity to be heard on the issue.
[1] A court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits, but such supplementation requires the court…
[2] A party is not obligated to dispute an affidavit submitted on an issue if they have received no indication that the affidavit will be considered by the trial court.
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“If affidavits are to be supplemented under this rule, the approval must be clearly indicated on the record for the benefit of all parties.”
Establishes the procedural requirement that court approval for supplemental affidavits must be clearly indicated on the record
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEllis was a guarantor of a mortgage debt in a foreclosure action brought by Barnett Bank. The bank moved for summary judgment seeking foreclosure and …
The full statement of facts, procedural history, and disposition for this case are member content.
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SCHEB, Judge.
Appellant Ellis, a guarantor of a mortgage debt, was one of several defendants in a suit brought by the appellee bank to foreclose that mortgage. Included in the relief prayed for was an award of reasonable attorney’s fees as provided in the underlying contract guaranteed by appellant.
Appellee moved for summary judgment. Affidavits as to the merits were submitted by both appellant and appellee prior to the hearing on the motion, but no affidavits were submitted at or prior to the hearing on the issue of attorney’s fees. Some three months after the hearing, without obtaining leave of court, appellee submitted an affidavit on the issue of attorney’s fees and sent a copy to appellant. Thereafter a final judgment of foreclosure which included $10,000 in attorney’s fees was entered.
Appellant contends the court was without authority to assess attorney’s fees under these circumstances. We agree.
Rule 1.510(e), Fla.R.Civ.Proc., provides:
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by deposi tions, answers to interrogatories or by further affidavits.
If affidavits are to be supplemented under this rule, the approval must be clearly indicated on the record for the benefit of all parties. Kendel v. City of Miami, 281 So. 2d 566 (Fla.3d DCA 1973). Although appellant was furnished a copy of appellee’s affidavit on the subject of fees, he was not obligated to dispute that affidavit since he received no indication that it would be considered by the trial court. This being the case, the court erred in awarding the fees without notice and an opportunity for appellant to be heard on the issue. Siciliano v. Hunerberg, 135 So. 2d 750 (Fla.2d DCA 1961).
We have carefully examined appellant’s remaining contention that summary judgment on the merits was improperly entered, and find it to be without merit.
Accordingly, that portion of the final judgment awarding attorney’s fees is reversed and the cause is remanded for further proceedings on the subject of attorney’s fees consistent with this opinion; otherwise, the final judgment is affirmed.
HOBSON, Acting C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Marlar v. The Quincy State Bank, 463 So. 2d 1233 (Fla. 1st DCA 1985)…id or did not object to or agree to the filing of the subject affidavit. “If affidavits are to be supplemented under this rule, the approval must be clearly indicated on the record for the benefit of all parties.” Ellis v. Barnett Bank of Lake-land, 341 So. 2d 545, 546 (Fla. 2d DCA 1977). Unlike Hart v. Colonial Penn Insurance Co., 397 So. 2d 1208 (Fla. 1st DCA 1981), we cannot treat the trial court’s improper reliance on the affidavit as harmless error. Appellant’s answer placed the amount actually due on t…
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Alton Bruce Morgan and Virginia Bruce Morgan v. S. Atl. Prod. Credit Ass'n, 528 So. 2d 491 (Fla. 1st DCA 1988)…00 So. 2d 463 (Fla. 4th DCA 1981); Tanner v. Tanner, 391 So. 2d 305 (Fla. 4th DCA 1980); Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979); Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); Ellis v. Barnett Bank of Lakeland, 341 So. 2d 545 (Fla. 2d DCA 1977); Benitez v. Benitez, 337 So. 2d 408 (Fla. 4th DCA 1976); Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975). In a factual scenario somewhat analogous to the situation in this case, the Fourth District Court of Appeal said: The f…
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Crystal Props., Inc. v. Fla. Indus. Constr. Co., Inc., 350 So. 2d 362 (Fla. 2d DCA 1977)…llowing the hearing on the motion for summary judgment. There was no showing that the parties agreed to waive the adversary proceedings otherwise required to determine the amount of a reasonable attorney’s fee. See Ellis v. Barnett Bank of Lakeland, 341 So. 2d 545 (Fla.2d DCA 1977); Siciliano v. Hunerberg, 135 So. 2d 750 (Fla.2d DCA 1961). Accordingly, that portion of the judgment awarding attorney’s fees is reversed, and the cause is remanded for further proceedings to set a reasonable fee; otherwise, the j…
Authorities Cited
- Siciliano v. Hunerberg, 135 So. 2d 750 (Fla. 2d DCA 1961)
- Kendel v. City OF Miami, 281 So. 2d 566 (Fla. 3d DCA 1973)