Opinion
No. 73-321.
July 17, 1973. Rehearing Denied September 12, 1973.
Appeal from the Circuit Court, Dade County, Shelby Highsmith, J.
Sibley, Giblin, Levenson Ward and Allan M. Glaser, Miami Beach, for appellants.
Alan H. Rothstein, City Atty., and S.R. Sterbenz, Asst. City Atty., for appellee.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
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.