Carvajal v. Apfelbaum

167 So. 2d 756 | Fla. Dist. Ct. App. | 1964

HENDRY, Judge.

Defendant appeals from a summary judgment granted plaintiffs.

Plaintiffs-lawyers brought suit against their client, another lawyer, seeking to recover their fee. Subsequent to the filing of the complaint plaintiffs moved for a summary judgment with affidavits annexed. Defendant submitted an affidavit in opposition and an answer to the complaint wherein he admitted he retained plaintiffs, but that he had paid them the agreed upon fee. He denied plaintiffs’ allegation, in their affidavit in support of the motion for summary judgment, that the amount paid by defendant represented a partial payment of the entire debt. The only evidence before the trial court were the pleadings, documents and affidavits, and on this the trial court granted the appellee’s motion for summary judgment.

It is evident from the state of the record that issues of fact existed, and the trial court erred in granting the summary judgment.¹ One of the issues of fact being whether the amount of money paid to the appellee constituted the entire fee as defendant contends or a partial payment as plaintiff asserted.

Accordingly, the judgment appealed is reversed and remanded for proceedings consistent herewith.

Reversed and remanded.

1 . See cases collected at 20 Fla-Jur., Summary Judgment § 22.