THOMAS M. SMITH AND JAMES M. PONTERIO, APPELLANTS,
v.
EMMA BARRETT, ELOISE KNIGHT D/B/A ALL ACTION, INC., AND THE KEYES CORPORATION, APPELLEES
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The trial court erred in denying appellants' motion for leave to amend their answer to assert affirmative defenses.
Appellants sought to amend their answer to include fraud and failure of consideration defenses before a summary judgment hearing on appellees' mortgag…
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DELL, Judge.
This appeal is from a final summary judgment entered in favor of appellees on their counterclaim for foreclosure of a mortgage. We reverse.
Two weeks before the scheduled hearing on appellees’ motion for summary judgment, appellants filed a motion to amend their answer to assert the affirmative defenses of fraud in the inducement and failure of consideration. Appellants made two unsuccessful attempts to have their motion heard prior to the hearing on appellees’ motion for summary judgment. At the hearing on appellees’ motion, the trial court denied appellants’ motion for leave to amend and to continue the hearing. The trial court then entered summary judgment in favor of appellees. Appellants contend that the trial court erred when it denied their motion for leave to file an amended answer. Appellee responds that the documentary evidence negates appellants’ affirmative defenses. We do not find appellees’ argument persuasive. The trial court’s denial of appellants’ motion precluded any consideration of the potential issues created by the proposed affirmative defenses. The trial court should have granted appellants’ motion for leave to amend and granted them the opportunity to present such evidence as they may have had in support of their affirmative defenses. Fla.R.Civ.P. 1.190.
Accordingly, we reverse the final summary judgment and we remand this cause for further proceedings consistent with this opinion. See Leavitt v. Garson, 528 So. 2d 108 (Fla. 4th DCA 1988).
REVERSED and REMANDED.
DOWNEY and GUNTHER, JJ., concur.
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Citator
Cited By
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Dimick v. RAY, 774 So. 2d 830 (Fla. 4th DCA 2000)…108, 110 (Fla. 4th DCA 1988). Amendments should be liberally granted, particularly when the motion is made prior to the hearing on a motion for summary judgment. See Soucy v. Casper, 658 So. 2d 1017, 1018 (Fla. 4th DCA 1995)(citing Smith v. Barrett, 564 So. 2d 582 (Fla. 4th DCA 1990), and Leavitt v. Garson). Abuse of the amendment process No abuse of the amendment process has been shown. Here, we do not have a virtual endless stream of amendments, all failing to state even a basic cause of action, such as-o…
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Soucy v. Casper, 658 So. 2d 1017 (Fla. 4th DCA 1995)…rred in denying her motion. Florida Rule of Civil Procedure 1.190(a) states that a motion for leave to amend should be liberally granted, particularly when the motion is made prior to the hearing on the motion for summary judgment. Smith v. Barrett, 564 So. 2d 582 (Fla. 4th DCA 1990); Leavitt v. Garson, 528 So. 2d 108 (Fla. 4th DCA 1988). Leave to amend should only be denied when the privilege has been abused or the amendment would be futile to state a cause of action. Gamma Dev. Corp. v. Steinberg, 621 So. 2…
Authorities Cited
- Jones v. State, 528 So. 2d 108 (Fla. 4th DCA 1988)
- Leavitt v. Garson, 528 So. 2d 108 (Fla. 4th DCA 1988)