PROFITABLE PRINCESS PROPERTIES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
JACK N. RODRIGUEZ, JUDITH J. RODRIGUEZ, AND CENTRAL BANK OF TAMPA, A BANKING CORPORATION IN THE STATE OF FLORIDA, APPELLEES
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Profitable Princess Properties challenged a summary judgment of mortgage foreclosure, arguing the trial court erred in refusing to allow amendment of its answer to add an affirmative defense based on alleged misrepresentation by the lenders regarding the property's usable space. The appellate court reversed, holding that the defendant presented a potentially meritorious defense that should have been considered in the summary judgment analysis.
The court held that the defendant presented at least the basic structure of a potentially meritorious defense and that the trial court erred in summarily rejecting it. The defense should have been considered for purposes of determining whether the plaintiffs were entitled to summary judgment.
[1] A trial court errs in refusing to allow a party to amend its pleadings to add an affirmative defense when the proposed defense is potentially meritorious.
[2] A material misrepresentation concerning property usage made at the time of sale, known to be untrue by the seller and relied upon by the buyer, may constitute a legally s…
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“We believe the appellant has presented at least the basic structure of a possibly meritorious defense and that the trial judge erred in summarily rejecting that defense.”
The court's determination that the trial judge should not have rejected the proposed affirmative defense on substantive grounds without proper consideration.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceProfitable Princess Properties purchased a building from the Rodriguezes and Central Bank of Tampa, who took back a note and mortgage. The defendant c…
The full statement of facts, procedural history, and disposition for this case are member content.
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DANAHY, Chief Judge.
The appellant, the defendant in a mortgage foreclosure suit, challenges a summary final judgment of mortgage foreclosure. The appellant asserts that the trial judge erred in refusing to allow the appellant to amend its pleadings to add an additional affirmative defense. We agree, and reverse. The appellant purchased a building from the appellees. As part of the purchase price, the appellees took back a note and mortgage from the appellant which they seek to enforce in this proceeding.
The day before a scheduled hearing on the appellees’ motion for summary judgment of foreclosure, the appellant served on the appellees a motion to allow amendment of the appellant’s answer to add an affirmative defense. The trial judge heard that motion at the time scheduled for the hearing on the appellees’ motion for summary judgment. The proposed affirmative defense was based on the appellant’s contention that at the time of the sale the appellees made a material misrepresentation to the appellant concerning the usage of the property, a representation which the appellees then knew was untrue and would be relied upon by the appellant.
Specifically, the alleged misrepresentation was that the third floor of the building could be occupied and rented. In its affirmative defense, the appellant contended that because there was no fire escape to the third floor, that floor could not be rented because to do so would violate the fire code; therefore, the appellant suffered damages by way of lost rents and the lost rents prevented the appellant from making the mortgage payments when due. The affirmative defense was framed by the appellant as a “setoff.”
The appellees say that the trial judge properly denied the appellant’s motion to amend so as to add this defense because the motion was untimely. However, the trial judge did not deny the motion on the basis of untimeliness; he denied the motion “for the reason that the proposed affirmative defense is not a proper or legally sufficient defense to this mortgage foreclosure action.”
We believe the appellant has presented at least the basic structure of a possibly meritorious defense and that the trial judge erred in summarily rejecting that defense. We find support for this conclusion in Hilsenroth v. Kessler, 446 So. 2d 147 (Fla. 3d DCA 1983). We believe that for purposes of determining whether the appellees are entitled to summary judgment, the trial judge should consider the defense sought to be asserted by the appellant.
Accordingly, we reverse and remand for further proceedings.
SCHEB and SCHOONOVER, JJ., concur.