G. JOEL GOLDSTEIN, APPELLANT,
v.
HELGA F. WORTMANN AND J. ANNE GOLDSTEIN, APPELLEES
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The court held that the trial court erred in striking the defendant's affidavit because it was timely filed under the rules.
The defendant filed an affidavit in opposition to a summary judgment hearing two days before the hearing, but after 5:00 p.m. on the second business d…
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KLEIN, Judge.
Appellant was a defendant in this mortgage foreclosure and responded to a summary judgment hearing set for March 20, 1997, by delivering an affidavit to opposing counsel at 4:00 p.m. on March 18,1997. The trial court struck appellant’s affidavit as not being timely filed under Florida Rule of Civil Procedure 1.510(c), which provides:
The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m. two business days prior to the day of hearing.
The parties have both resorted to rule 1.090(a), which governs the computation of time; however, they cannot agree on how to read rule 1.090(a) in conjunction with rule 1.510(c). We conclude that it is unnecessary to consult rule 1.090(a), because of the clarity of rule 1.510(c). If the day of the hearing was March 20, one day prior to the hearing was March 19, and two days prior to the hearing was March 18. Accordingly, appellant had until 5:00 p.m. on March 18 to deliver the affidavit.
We therefore conclude that the trial court erred in striking the affidavit. Appellee does not argue that the trial court’s failure to consider the affidavit was harmless error, and we agree with the appellant that his affidavit does raise material issues of fact.
Reversed.
FARMER and STEVENSON, JJ., concur.
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R.T.G. Furniture Corp. v. Coates, 93 So. 3d 1151 (Fla. 4th DCA 2012)…y. (Emphasis added). Contrary to the appellees’ argument, rule 1.090(a) does not change the result in this case. Indeed, in this case it is unnecessary to consult rule 1.090(a) given the clarity of rule 1.442(b). See Goldstein v. [*1155] Wortmann, 712 So. 2d 397 (Fla. 4th DCA 1998). In Goldstein, the question presented was whether an affidavit in opposition to summary judgment was timely under Florida Rule of Civil Procedure 1.510(c) where it was delivered to opposing counsel at 4:00 p.m. on March 18, 1997,…
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Mayzell v. Quarles & Brady, 744 So. 2d 1073 (Fla. 4th DCA 1999)…ccurred is unexplained in light of the plain language of Florida Rule of Civil Procedure 1.510(c) which permits delivery of such opposing affidavits prior to 5:00 p.m. two business days prior to hearing on the motion. Unlike Goldstein v. Wortmann, 712 So. 2d 397 (Fla. 4th DCA 1998), however, appellee in this case has presented the argument that notwithstanding the trial court’s erroneously striking the affidavits, the error was harmless. We agree. POLEN and SHAHOOD, JJ., concur.…