Guerdon Industries, Inc. v. Durrenberger

BOOTH, Judge. This cause is before the Court on Petition for Writ of Certiorari to review the order of the Circuit Court, Washington County, which order is in pertinent part, as follows: “THIS CAUSE having come on before the Court for Hearing, upon Defendant’s Motion To Strike Affidavit, and Motion For Summary Judgment; and the Court having considered the matter, and having heard argument from counsel for both parties; and finding that a Motion For Summary Judgment is a pleading, and that the Pre-Trial Order forbids the filing of any further pleading without order of the Court; it is therefore * * * * * * ORDERED AND ADJUDGED that Defendant’s Motion For Summary Judgment be, and it is hereby, denied, upon the aforesaid basis that it is a pleading and therefore proscribed by the provisions of the Pre-Trial Order . .” On consideration of the Petition and Appendix and Response thereto we hold that the Petition has merit and that the foregoing order of the trial court refusing to consider a motion for summary judgment on the grounds stated violates essential requirements of law. A motion for summary judgment is not a “pleading.” See Rules 1.100 and 1.110, F.R.C.P.; Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974), cert. denied 302 So.2d 414 (Fla.1975). Further, the trial court may not prohibit or deny consideration of the motion if timely and otherwise proper under Rule 1.510, F.R.C.P. Accordingly, the order denying summary judgment is VACATED and the cause REMANDED for consideration of the motion on its merits. BOYER, Acting C. J., and SMITH, J., concur.