Hatmaker v. Advance Mortgage Corp.

351 So. 2d 728

• Court: District Court of Appeal of Florida
• Decided: October 11, 1977
• Docket: 76-2170
• Status: Published

Opinion

351 So.2d 728 (1977)

Preston G. HATMAKER, Appellant,
v.
ADVANCE MORTGAGE CORPORATION, a Delaware Corporation, Appellee.

No. 76-2170.

District Court of Appeal of Florida, Fourth District.

October 11, 1977. Rehearing Denied December 1, 1977.

Thomas E. Brandt of Law Offices of Donald R. Niles, formerly Tripp & Niles, Fort Launderdale, for appellant.

Peter H. Leavy of Myers, Kaplan, Levinson & Kenin, Miami, for appellee.

PER CURIAM.

The plaintiff appeals from a summary final judgment in favor of the defendant.

It is debatable whether, at the time the summary judgment was initially granted, the defendant as the moving party had met its burden of showing that there were no genuine issues of fact. We need not, however, rest our decision on the record before the trial court at the time of the initial hearing. In support of his motion for rehearing the plaintiff filed an affidavit which clearly established the existence of genuine issues of fact; but, the trial 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.