Opinion
No. 74-1038.
October 17, 1975.
Appeal from the Circuit Court, Broward County, Louis Weissing, J.
Stephen W. Toothaker, Davie, for appellant.
Philip Michael Cullen, III, Fleming, O'Bryan Fleming, Fort Lauderdale, for appellee.
Plaintiff-appellant, Michael's School of Dance Charm, Inc., brought suit against Broward National Bank, as representative of the Olive Rankin Estate for services rendered. The president of Michael's entered an affidavit that she was the major stockholder, kept the records, and observed decedent taking dancing lessons and that the deceased had received 1,283 hours of dance lessons, for which she owed $20 an hour. The court granted the bank's motion for final summary judgment on the grounds that "Plaintiff will be barred from making out a prima facie case by virtue of the Dead Man's Rule."
Two questions are raised. First, that it was error to grant a summary judgment based on the Dead Man's Rule; and second, that plaintiff failed to bring an action upon its claim within thirty days from the service of an objection thereto upon it. Fla. Stat. 733.705 (Supp. 1974).
The affidavit in objection to the motion for summary judgment in this case does not preclude the showing of any other genuine issue of a material fact. It was error to assume such, in this case, harmless error. However, the above cited statute of limitation is effective in that there is no showing in the record that any extension of time was granted or applied for within which to bring an action upon plaintiff's claim.
Therefore, the judgment is affirmed.
Affirmed.
CROSS, J., concurs.
DOWNEY, J., specially concurs, with opinion.
I agree with the result reached in the majority opinion, but deem it advisable to point out that appellee's motion for summary judgment was based upon two grounds, (1) that appellant would be unable to prove the alleged oral contract with the decedent because of the dead man's statute, § 90.05, F.S. 1973, and (2) that appellant's claim is barred by § 733.18(2), F.S. 1973. The trial court granted summary judgment on ground number one.
As the majority points out, summary judgment based upon the dead man's statute does not demonstrate the absence of a genuine issue of fact. For aught the record shows, appellant may be able to prove its claim by witnesses who are not within the purview of the dead man's statute. And nothing filed by appellee in support of its motion for summary judgment required appellant to show just how it proposed to prove the contract in question. However, though the reason for granting the summary judgment was wrong, the judgment itself was properly entered because the record shows that appellant did not bring its suit within 30 days after appellee filed an objection to appellant's claim. Consequently the claim sued upon was barred by § 733.18(2), F.S. 1973.
Although appellant's brief is silent regarding the applicability of § 733.18(2), F.S. 1973, during oral argument counsel suggested that allowing the filing of an amended complaint in this cause was tantamount to granting an extension of time to file suit on the claim. A somewhat similar contention was rejected by the Court in Poncier v. State, Dept. of Health Rehab. Serv., etc., Fla.App. 1973, 284 So.2d 463, for the reason that the power to extend the time for filing suit after objection to a claim rests in the circuit judge in the probate cause and not in the trial judge presiding over the claim in litigation. I agree that a fair reading of the statute requires that conclusion.
Accordingly, I concur in the affirmance of the judgment appealed from.