RUTH S. BOYD AND JOHN W. BOYD, HER HUSBAND, APPELLANTS,
v.
INTERNATIONAL FIDELITY INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Property owners appealed a foreclosure judgment on property pledged as security for their son's bail bond, arguing the bonding company failed to comply with statutory filing requirements. The court affirmed, holding that the appellants waived their statutory defense by failing to raise it before summary judgment was entered.
Appellants cannot raise the statutory compliance defense for the first time after summary judgment has been entered. The defense must be asserted prior to or at the time of summary judgment, or it is waived. Incomplete compliance with section 903.14 does not deprive the court of jurisdiction.
[1] A party may not defeat an entered summary judgment by altering previously filed pleadings, especially when the matters sought to be presented by amendment were available…
[2] Failure to assert an affirmative defense prior to the entry of summary judgment precludes a party from raising the issue on appeal.
Previewing 2 of 4 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“A party may not defeat an entered summary judgment by altering previously filed pleadings, see generally Inman v. Club on Sailboat Bay, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977), especially when the matters it seeks to present by amendment were available prior to the entry of summary judgment.”
Establishes the primary rule that parties cannot use post-judgment amendments to raise defenses available before summary judgment
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Boyds pledged property as security for their son's appearance on criminal charges. International Fidelity Insurance Company obtained a judgment of…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sufficiency Of Complaint cases and more on FLexlaw
BASKIN, Judge.
Appellants challenge a Final Judgment of Foreclosure entered against property they pledged as security for their son’s appearance on criminal charges. They contend that the entry of summary judgment was error because the bonding company failed to file the full statement required by section 903.14, Florida Statutes (1979),1 setting forth the amount of its bond and the source of the security. Counsel for appellants admits that his predecessor failed to present the issue either by affirmative defense or during the hearing which preceded the entry of summary judgment. He contends, nevertheless, that the trial court should have reopened the case after summary judgment had been entered because appellants’ new counsel wished to raise the lack of compliance with section 903.14 as “additional evidence.” We disagree.
A party may not defeat an entered summary judgment by altering previously filed pleadings, see generally Inman v. Club on Sailboat Bay, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977), especially when the matters it seeks to present by amendment were available prior to the entry of summary judgment. Appellants’ failure to support their motion for rehearing by furnishing the court with the statement alleged to be violative of section 903.14 and to assert their affirmative defense prior to the entry of summary judgment precludes them from raising the issue on appeal. Incomplete compliance with section 903.14 does not defeat the court’s jurisdiction; the defense of failure to comply with the statutory condition must be asserted or the condition is waived. See Dober v. Worrell, 401 So. 2d 1322 (Fla.1981); Sotille v. Gaines Construction Co., 281 So. 2d 558 (Fla. 3d DCA 1973), cert. denied, 289 So. 2d 737 (Fla.1974); Fla. R.Civ.P. 1.140(b).
Affirmed.
. 903.14 Contracts to indemnify surities.—
(1) A surety shall file with the bond an affidavit stating the amount and source of any security or consideration which he or anyone for his use has received or been promised for the bond.
(2) A surety may maintain an action against the indemnitor only on agreements set forth in the affidavit. In an action by the indemnitor to recover security or collateral, the surety shall have the right to retain only the security or collateral stated in the affidavit.
JORGENSON, Judge,
dissenting.
I respectfully dissent.
The pleadings in this case affirmatively demonstrate that the mortgage upon which the summary judgment is based was given in support of a bail bond. In such cases, compliance with Section 903.14, Florida Statutes (1979) is a necessary prerequisite to the entry of summary judgment. United Bonding Insurance Company v. Tuggle, 216 So. 2d 80 (Fla. 2d DCA 1968). The provision giving a surety the ability to maintain an action against an indemnitor in a bail bond case, as found in Section 903.14(2), Florida Statutes (1979), operates not only to place the parties on equal footing, United Bonding, supra, but is also analogous to the notice provisions as they are found in Section 768.28, Florida Statutes (1979) and must be alleged in the complaint. Cf. Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010, 1022 (Fla.1979).
I would reverse the summary judgment under review and remand to the trial court with directions to dismiss the complaint with leave to amend the complaint so as to allege compliance with Section 903.14, Florida Statutes (1979). Commercial Carrier Corporation v. Indian River County, supra, at 1023.
Since the complaint was insufficient as a matter of law, summary judgment should not have been granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Agudo, Pineiro & Kates, P.A. v. Harbert Constr. Co., 476 So. 2d 1311 (Fla. 3d DCA 1985)…judgment. Swift Independent Packing Co. v. Basic Food International, Inc., 461 So. 2d 1017 (Fla. 4th DCA 1984); McIntyre v. Norman, 429 So. 2d 1296 (Fla. 3d DCA), rev. denied, 438 So. 2d 833 (Fla.1983); Boyd v. International Fidelity Insurance Co., 412 So. 2d 944 (Fla. 3d DCA 1982). The rules suggest, then, that the defense of illegality is waivable. If so, then in a contractual setting, the contract becomes merely voidable. The only defense that appears to be absolute and un-waivable is the defense of lack…
-
Boyd v. Brett-Major, 449 So. 2d 952 (Fla. 3d DCA 1984)…ion, .but failed to adequately plead Section 903.14 as an affirmative defense. A final summary judgment was entered against plaintiffs on the bonding company’s motion. On appeal we affirmed the judgment. Boyd v. International Fidelity Insurance Co., 412 So. 2d 944 (Fla. 3d DCA 1982). Plaintiffs thereafter filed a legal malpractice action against the attorney and her insurer. Defendants alleged as an affirmative defense to the claim: The Plaintiffs specifically instructed the Defendant, LIN BRETT-MAJOR, to p…
-
DeCOSMO v. Taffi Fisher, 683 So. 2d 659 (Fla. 5th DCA 1996)…arty who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. Boyd v. International Fidelity Insurance Company, 412 So. 2d 944 (Fla. 3d DCA 1982); Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977). Accord Berger v. Lewison, 521 So. 2d 311 [*661] (Fla. 3d DCA 1988); Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981). Accordingly, the order of the tr…
Authorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Inman v. The Club ON Sailboat KEY, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977)
- Sottile v. Gaines Constr. Co., 281 So. 2d 558 (Fla. 3d DCA 1973)
- United Bonding Ins. Co. v. Tuggle, 216 So. 2d 80 (Fla. 2d DCA 1968)
- Gaines Constr. Co. v. Sottile, 289 So. 2d 737 (Fla. 1974)