Norton v. Gibson

532 So. 2d 1325, 13 Fla. L. Weekly 2411, 1988 Fla. App. LEXIS 4739, 1988 WL 113842

• Court: District Court of Appeal of Florida
• Decided: October 28, 1988
• Docket: No. 88-1173
• Status: Published

Opinion

NIMMONS Judge.

Appellant, the defendant below, appeals from a summary judgment entered in favor of appellee/plaintiff in this paternity action. We reverse for failure of the plaintiff to serve her summary judgment motion at least 20 days before the time fixed for the hearing as required by Fla.R.Civ.P. 1.510(c).

On April 12, 1988, plaintiff filed and served her motion for summary judgment. On April 13, 1988, the defendant was served by hand with a notice of hearing indicating that the motion for summary judgment would be heard at a hearing before the court scheduled for the following day, April 14. At an earlier hearing on April 4, the Court, according to the recitations in the order granting summary judgment, advised the attorneys that he would hear all outstanding motions on April 14, including plaintiff’s summary judgment motion although the latter had not yet been filed or served.

At the hearing on April 14, defendant’s counsel objected to the court’s consideration of the summary judgment motion inasmuch as the motion had not been timely served in accordance with the provisions of Rule 1.510(c).¹ Nevertheless, the court proceeded to hear the summary judgment motion as well as other pending motions and, the following day, entered summary judgment against the defendant. The defendant’s subsequent motion for rehearing was denied.

It is well established that it is reversible error to grant summary judgment pursuant to a motion which has not been served in accordance with the 20-day time requirement of Rule 1.510(c). Brock v. G.D. Searle & Co., 530 So.2d 428 (Fla. 1st DCA 1988); Lazar v. Allen, 347 So.2d 457 (Fla. 2nd DCA 1977); Cleveland Trust Company v. Foster, 93 So.2d 112 (Fla.1957). This was not an instance of a summary judgment being entered at or pursuant to a pretrial conference. Compare Savage-Hawk v. Premier Outdoor Products, Inc., 474 So.2d 1242 (Fla. 2nd DCA 1985).

Accordingly, the summary judgment is REVERSED.

SMITH, C.J., and MILLS, J., concur.

1 . Rule 1.510(c) provides in pertinent part:

(c) Motion and Procedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing.