THE FIRST NATIONAL BANK OF TAMPA, AS TRUSTEE, UNDER TRUST AGREEMENT DATED AUGUST 30, 1965, D/B/A KASH N' KARRY WHOLESALE SUPERMARKETS, APPELLANT,
v.
MICHAEL L. PAPPAS, APPELLEE
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The court reversed summary judgment for the appellee because the appellant raised a genuine issue of material fact regarding whether a reciprocal easement agreement modified the original lease, and the trial court should have allowed amendment of pleadings.
Summary judgment is improper when the nonmoving party's affidavit raises a genuine issue of material fact that must be resolved by the trier of fact.
[1] A trial court abuses its discretion by granting summary judgment when the nonmoving party's affidavit raises a genuine issue of material fact requiring resolution by the…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“summary judgment is not to be granted unless the moving party can demonstrate that there is no genuine issue of material fact which, if taken in a light most favorable to the nonmoving party, would entitle the nonmoving party to relief”
Establishing the standard for summary judgment review, citing Holl v. Talcott, 191 So. 2d 40 (Fla.1966)
First National Bank of Tampa, as trustee for Kash n' Karry Wholesale Supermarkets, appealed a summary judgment entered in favor of Michael L. Pappas r…
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BOARDMAN, Acting Chief Judge.
This is an appeal from a final summary judgment entered in favor of appellee.
Appellee did not conclusively show the absence of a genuine issue of material fact concerning appellant’s contention that the original lease was modified by a subsequently recorded reciprocal easement agreement, of which appellee is alleged to have had constructive notice. It is well settled that summary judgment is not to be granted unless the moving party can demonstrate that there is no genuine issue of material fact which, if taken in a light most favorable to the nonmoving party, would entitle the nonmoving party to relief. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). The affidavit filed by appellant in opposition to the motion for summary judgment contains allegations sufficient to create an issue of material fact which must be resolved by the trier of fact.
Furthermore, we believe that under the circumstances here the trial court should have granted appellant’s motion for leave to amend its pleadings, which was filed after entry of the order granting appellee’s motion for summary judgment but before final summary judgment was entered. See Bradham v. Hayes Enterprises, Inc., 306 So. 2d 568 (Fla. 1st DCA 1975); see also Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977); Watier v. REW Crane Service, Inc., 240 So. 2d 177 (Fla. 4th DCA 1970), modified, 257 So. 2d 249 (Fla.1971).
Accordingly, the order of final summary judgment is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
SCHEB and OTT, JJ., concur.
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Coudry v. City OF Titusville, 438 So. 2d 197 (Fla. 5th DCA 1983)…s for use with the Rules of Civil Procedure, approved by the Supreme Court, 265 So. 2d 21 at 42. . See Purinson v. Antenna Specialists Co., 408 So. 2d 617 (Fla. 3d DCA 1981), pet. den. 418 So. 2d 1278 (Fla.1982); First Nat. Bank of Tampa v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979); Dorset House Ass’n, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3d DCA 1979); Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So. 2d 137 (Fla. 3d DCA 1977), appeal añer remand 382 So. 2d 878 (Fla. 3d DCA 1980); Sc…
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DiPAOLO v. Rollins Leasing Corp., 700 So. 2d 31 (Fla. 5th DCA 1997)…d DCA 1987); Cudlipp v. Blue Chip Laundry, Inc., 476 So. 2d 783 (Fla. 4th DCA 1985); Woodham v. Moore, 428 So. 2d 280 (Fla. 4th DCA 1983); Kadar v. Iowa Nat. Mut. Ins. Co., 374 So. 2d 1075 (Fla. 5th DCA 1979); First National Bank of Tampa v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979); Inman v. The Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977), and cases cited therein. . The Florida Rules of Appellate Procedure were amended to avoid the pitfall for partial final summary judgments created by Me…
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The KEY Bank OF Fla. v. First United Land Title Co., 502 So. 2d 1280 (Fla. 2d DCA 1987)…e for leave to amend. Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1963); Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956). This is especially appropriate here where summary final judgment has not been entered. See First National Bank v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979). We, accordingly, reverse the summary judgment and remand for proceedings consistent herewith. REVERSED. FRANK, J., concurs. GRIMES, A.C.J., dissents with opinion. . Before enactment of the Uniform Commercial Code, this type…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wilda H. Bradham v. Hayes Enters., Inc., 306 So. 2d 568 (Fla. 1st DCA 1975)
- Gold Coast Crane Serv., Inc. v. Watier, 257 So. 2d 249 (Fla. 1971)
- Schurkman v. Stolar, 347 So. 2d 653 (Fla. 3d DCA 1977)
- Watier v. REW Crane Serv., Inc., 240 So. 2d 177 (Fla. 4th DCA 1970)