Opinion
Case No. 97-1418
Opinion filed March 11, 1998 JANUARY TERM 1998 Rehearing Denied April 17, 1998.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Moses Baker, Judge; L.T. Case No. CL 96-9724 AH.
Timothy L. Whalen of Daves, Whalen, McHale Considine, West Palm Beach, for appellant.
Kathleen B. Johnson of Kathleen B. Johnson, P.A., Boca Raton, for appellees.
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.