Asset Recovery v. Hossairati

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2013 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED ASSET RECOVERY CENTER INVESTMENTS, LLC, Appellant, v. Case No. 5D11-3116 ESTATE OF CHARLES HOSSAIRATI, Appellee. _______________________________/ Opinion filed May 31, 2013 Appeal from the Circuit Court for Orange County, Thomas R. Kirkland , Judge. Jack R. Reiter of Carlton Fields, P.A., Miami, for Appellant. Nicholas A. Shannin of The Shannin Law Firm, P.A., and Roger D. Moss, Jr., of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellee. PER CURIAM. We conclude that the trial court abused its discretion in denying Appellant's motion for rehearing, which established excusable neglect by Appellant s counsel in failing to appear at the summary judgment hearing and failing to file a counter-affidavit. The late-filed affidavit creates an issue of material fact precluding summary judgment. Marco Surfside, Inc. v. Velez, 438 So. 2d 911 (Fla. 3d DCA 1983). REVERSED and REMANDED. GRIFFIN, TORPY and JACOBUS, JJ., concur. 2

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