89 So. 2d 21 | Fla. | 1956
The appellee has moved to affirm the judgment in this cause under Rule 38, 31 F.S.A., upon the following grounds:
“1. That it is manifest that the questions on which the decision of this cause depends are so unsubstantial as not to need further argument in the following respects:
“(a) That this cause is being appealed before this Honorable Court upon the Appellant’s Complaint, Appellee’s Answer thereto, Appellant’s Interrogatories, Ap-pellee’s Answer to Interrogatories, Appel-lee’s Motion for Summary Final Decree and the supporting and opposing affidavits filed in connection therewith by the respective parties of record. Specifically, the Appellant filed its appeal from the order of the Trial Court granting the Appellee’s Motion for Summary Final Decree.
“(b) There is no genuine issue as to any material fact involved in the controversy.
“(c) That upon the pleadings herein-above referred to, the Appellee is entitled as a matter of law to have its Motion for Summary Final Decree granted.”
Such motion is wholly insufficient under Rule 38 and under the pronouncement of this Court in Joseph T. Miller Construction Co. v. Borak, Fla., 82 So.2d 147, 149, where we set down at considerable length the procedure to be followed when this rule was to be invoked. We stated there:
“As will be noted, the appellee is required, when proceeding under Rule 38, to ‘set forth clearly and concisely the matter on which (his motion) is based.’ This provision of the rule is not complied with by merely asserting in the motion ‘that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument,’ for the duty rests upon the movant to point out ‘clearly and concisely’, with appropriate references to the record-on-appeal, the appellant’s brief, or the appendix, the exact matter on which he bases his conclusion that the questions raised are unsubstantial. Moreover, the burden rests upon the movant to sustain the grounds of his motion by the argument in his brief, and by his oral argument, if oral argument is requested. Rule 39, subd. 3, Supreme Court Rules.”
The motion to affirm is denied.
We reaffirm what we said in the foregoing case and think it timely to point out again the burden placed upon the mov-ant to point out “clearly and concisely” the exact matter on which he bases his conclusion that the questions raised are unsubstantial. Failure to comply with this rule will result in summary disposition of these motions.
