HARRY KENDEL ET AL., APPELLANTS,
v.
CITY OF MIAMI, APPELLEE
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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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Ellis v. Barnett Bank OF Lakeland, 341 So. 2d 545 (Fla. 2d DCA 1977)…opposed by deposi [*546] 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…
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City OF Miami v. Kendel, 290 So. 2d 492 (Fla. 1974)…Certiorari denied. 281 So. 2d 566. CARLTON, C. J., and ROBERTS, ADKINS and DEKLE, JJ., concur. ERVIN, J., dissents.…
Authorities Cited
- Coquina Ridge Props. v. E. W. Co., 255 So. 2d 279 (Fla. 4th DCA 1971)
- City OF Coral Gables v. Sackett, 253 So. 2d 890 (Fla. 3d DCA 1971)