Kendel v. City of Miami

District Court of Appeal of Florida

Kendel v. City of Miami

281 So. 2d 566, 1973 Fla. App. LEXIS 7727

CourtDistrict Court of Appeal of Florida

DecidedJuly 17, 1973

DocketNo. 73-321

StatusPublished

Cited by3 cases

This text of 281 So. 2d 566 (Kendel v. City of Miami) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kendel v. City of Miami, 281 So. 2d 566, 1973 Fla. App. LEXIS 7727 (Fla. Ct. App. 1973).

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Opinion

PEARSON, Judge.

The counterdefendants appeal a partial summary judgment which held them liable under an ordinance providing for a license fee. It is contended that there is a genuine issue of material fact as to the validity of the ordinance. We agree and reverse. See City of Coral Gables v. Sackett, Fla.App.1971, 253 So.2d 890.

Appellee urges that the issue was laid to rest by an affidavit supplementing the minutes of the City Commission. The affidavit was filed two days after the hearing upon the motion for partial summary judgment. See Coquina Ridge Properties v. East West Company, Fla.App.1971, 255 So.2d 279. Appellee contends that the record reflects the trial judge’s permission for the late filing. In our view the record does not support this position. If affidavits are to be supplemented pursuant to Rule 1.510(e), R.C.P., 31 F.S.A., the approval must be clearly indicated on the record for the benefit of all parties. Furthermore, the supplementary affidavit in this case did not conclusively show that the issue did not exist but merely defined the issue for trial.

The partial summary judgment is reversed and the cause is remanded for further proceedings.

Reversed.

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PEARSON, Judge.

The counterdefendants appeal a partial summary judgment which held them liable under an ordinance providing for a license fee. It is contended that there is a genuine issue of material fact as to the validity of the ordinance. We agree and reverse. See City of Coral Gables v. Sackett, Fla.App.1971, 253 So.2d 890.

Appellee urges that the issue was laid to rest by an affidavit supplementing the minutes of the City Commission. The affidavit was filed two days after the hearing upon the motion for partial summary judgment. See Coquina Ridge Properties v. East West Company, Fla.App.1971, 255 So.2d 279. Appellee contends that the record reflects the trial judge’s permission for the late filing. In our view the record does not support this position. If affidavits are to be supplemented pursuant to Rule 1.510(e), R.C.P., 31 F.S.A., the approval must be clearly indicated on the record for the benefit of all parties. Furthermore, the supplementary affidavit in this case did not conclusively show that the issue did not exist but merely defined the issue for trial.

The partial summary judgment is reversed and the cause is remanded for further proceedings.

Reversed.

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281 So. 2d 566, 1973 Fla. App. LEXIS 7727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kendel-v-city-of-miami-fladistctapp-1973.

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