District Court of Appeal of Florida, Third District.
Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellant.
Spence, Payne & Masington, Miami, Richard E. Hardwick, Coral Gables, Sam Daniels, Miami, for appellees.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
PER CURIAM.
Appellant-defendant, a third party plaintiff below, seeks review of an adverse summary judgment entered in favor of the alleged insurer on the basis of coverage by the company of the appellant in a personal injury "dog bite" case. We reverse.
We have carefully considered the record, briefs and arguments of counsel and have concluded that the trial court erroneously entered summary final judgment in favor of appellee without a hearing on the motions and prior to the completion of scheduled discovery proceedings that were relevant to the issues involved. Accordingly, the order granting summary judgment in favor of appellee and denying *515 same to appellant[1] are hereby reversed and the cause is remanded for a hearing on said motions based upon the record now before this court, and any other matters that are properly presented to the court prior to said hearing.
Appellant's petition for attorney's fees on this appeal is denied without prejudice to his right to apply to the trial court in the event that appellant prevails below on the issue of coverage. See Daleo v. Bert & Bette Bayfront 66 Marine, Fla.App. 1973, 273 So. 2d 113.
Reversed and remanded with directions.
[1] While it appears that both parties moved for summary judgment that fact does not bind the lower court to render same where the prerequisites for summary judgment are not met. See, Osceola County v. Goodman, Fla.App. 1973, 276 So. 2d 210.
