THE HEMISPHERE NATIONAL BANK, APPELLANT,
v.
JOHN N. GOUDIE, APPELLEE
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The court held that a claim not raised in the pleadings cannot be considered on a motion for summary judgment.
[1] A guarantor may validly revoke their guaranty by written notice pursuant to the terms of the guaranty agreement.
[2] A court hearing a motion for summary judgment can only consider issues raised by the pleadings.
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Join FLexlaw to unlock all legal intelligenceHemisphere Bank sued Goudie on a promissory note after Fergo, Inc. defaulted. Goudie asserted he had revoked his guaranty and was not liable. The tria…
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PER CURIAM.
Hemisphere National Bank (Hemisphere) brought this action to collect funds due under a promissory note executed in its favor by Fergo, Inc. The note was originally secured by a second mortgage on certain real property and by a Guaranty Agreement executed by John Goudie and Jose Ferrer. Prior to the commencement of this suit, however, the first mortgage was foreclosed on the real property and Ferrer filed personal bankruptcy. Fergo, Inc. defaulted on the note, and Hemisphere then brought this action against Goudie to recover the principal, accrued interest, costs and attorney’s fees pursuant to the Promissory Note and Guaranty Agreement. The action was filed against Goudie as an officer, director and major stockholder in Fergo, Inc. and as a guarantor of the note. As an affirmative defense, Goudie asserted that he had validly revoked his guaranty by written notices pursuant to paragraph 6 of the Guaranty Agreement and that Hemisphere subsequently executed a renewal note to which Goudie was not a party. The trial court then entered summary judgment in favor of Goudie.
The record supports the trial court’s finding that Goudie was no longer an obligor under the note either as a principal of Fergo, Inc. or as a guarantor. The entry of summary judgment on these points was, therefore, correct and must be affirmed. Miami Nat’l Bank v. First Int’l Realty Inv. Corp., 364 So. 2d 873 (Fla. 3d DCA 1978), cert. denied, 376 So. 2d 74 (Fla.1979).
Hemisphere argued, alternatively, before the trial court and here, that Goudie was liable as an endorser of the note. That claim, however, was not included in the pleadings, and under Florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings. Reina v. Gingerale Corp., 472 So. 2d 530, 531 (Fla. 3d DCA 1985). Since the complaint was not broad enough to include a claim against Goudie as an endorser of the note, that question was not properly before the court.
Affirmed.
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Fernandez v. Fla. Nat'l Coll., Inc., 925 So. 2d 1096 (Fla. 3d DCA 2006)…l court at a summary judgment hearing. Am. Title Ins. Co. v. Carter, 670 So. 2d 1115 (Fla. 5th DCA 1996)(holding that at summary judgment hearing, trial court erred by considering theory not raised in the pleadings); Hemisphere Nat’l Bank v. Goudie, 504 So. 2d 785 (Fla. 3d DCA 1987)(holding that “under Florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings”); Reina v. Gingerale Corp., 472 So. 2d 530, 531 (Fla. 3d DCA 1985)(“At the summary j…
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S. Fla. Coastal Elec., Inc. v. Treasures ON the BAY II Condo Ass'n, Inc., 89 So. 3d 264 (Fla. 3d DCA 2012)…agency by failing to plead apparent agency in complaint and failing to move to amend the complaint; “[IJssues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing.”). Hemisphere Nat’l Bank v. Goudie, 504 So. 2d 785, 786 (Fla. 3d DCA 1987) (finding that bank’s failure to raise claim in pleadings regarding individual’s alleged status as endorser of note precluded trial court from ruling on claim on a summary judgment motion; “Under Florida law a court hearing a…1 / 2
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Am. Title Ins. Co. v. Carter, 670 So. 2d 1115 (Fla. 5th DCA 1996)…nation was whether coverage existed under the Carters’ title policy. We agree with American Title that the trial court erred in considering the Carters’ estop-pel theory because it was not raised in the pleadings. See Hemisphere Nat. Bank v. Goudie, 504 So. 2d 785 (Fla. 3d DCA 1987); Reina v. Gingerale Corp., 472 So. 2d 530 (Fla. 3d DCA 1985); Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556, 557 (Fla. 3d DCA 1971); Couchman v. Goodbody & Co., 231 So. 2d 842 (Fla. 4th DCA 1970); Turf Express, Inc. v.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reina v. Gingerale Corp., 472 So. 2d 530 (Fla. 3d DCA 1985)
- Miami Nat'l Bank v. First Int'l Realty Inv. Corp., 364 So. 2d 873 (Fla. 3d DCA 1978)