10 Fla. L. Weekly Supp. 478a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 679a
Insurance — No error in denying insurer’s motion for summary judgment where there remained disputed issues of material fact — Trial court’s failure to consider affidavit of insurance representative submitted by insurer in support of its motion for summary judgment, although technical error, was harmless where insurer confessed judgment on only remaining claim — Attorney’s fees — Insurer’s motion for appellate fees is denied — Even if insurer were prevailing party, motion for fees was tardy, as was reply brief with which motion was filed
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, vs. RICHARD R. SHAKER, D.C., P.A., (a/a/o Robert Cook), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 02-5390. Division X. L.C. Case No. 01-15888SC. June 2, 2003. Sam D. Pendino, Judge. Counsel: Michael C. Clark, St. Petersburg. Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa.
ORDER ON APPELLANT’S MOTION FOR REHEARING
[Original Opinion at 10 Fla. L. Weekly Supp. 85a;][Subsequent Clarification at 10 Fla. L. Weekly Supp. 679a.]
Upon consideration of Appellant’s Motion for Rehearing, the per curiam opinion entered by the court on December 17, 2002, is hereby withdrawn and the following opinion is substituted:
This is an Appeal from a Final Judgment entered in favor of Appellee. Appellant contends that the trial court erred in denying its motion for summary judgment. Appellant also contends that summary judgment entered in favor of Appellee indicated that there were issues of material fact precluding entry of summary judgment, and that the trial court failed to consider an affidavit submitted on behalf of Appellant for its motion for summary judgment. We affirm the decision of the county court.
As to the alleged error in failing to grant Appellant’s motion for summary judgment, our review of the record supports the trial court’s finding that disputed issues of material fact precluded the granting of Appellant’s motion. Accordingly, the trial court correctly denied Appellant’s motion for summary judgment.
As to whether summary judgment was proper, Appellant confessed judgment on the only remaining claim. Thus, the fact that the court failed to consider an affidavit of an insurance representative submitted on behalf of Appellant for its motion for summary judgment, while a technical error, was harmless.
With respect to Appellant’s motion for appellate attorney fees, we must deny the request. Even if Appellant were the prevailing party, its motion was tardy, as was the reply brief with which it was file. Fla. R. App. P. 9.400(b).
It is therefore,
ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED. (Simms and Barton, JJ., concur.)
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