ANTONIO CARDET AND ARACELI CARDET, APPELLANTS,
v.
FERNANDO RODRIGUEZ, APPELLEE
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The court held that summary judgment was improperly granted because the appellee failed to conclusively demonstrate the promissory note was lost, rather than pledged.
Appellants appealed an adverse summary judgment for appellee's action to reestablish a lost promissory note. Appellee testified in his deposition that…
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PER CURIAM.
Appellants appeal an adverse summary judgment entered in favor of appellee on his action brought pursuant to section 71.011, Florida Statutes (1993) for the reestablishment of a purportedly “lost” promissory note. We reverse and find that the trial court erred in granting summary judgment on this record where appellee has failed to conclusively demonstrate that the note was “lost” and not otherwise pledged or utilized as security for a bank loan by appellee.
We reach this conclusion because in his deposition, appellee Rodriguez testified that he did not know where the original note was. He stated, “I think we went to a bank to negotiate this and [it] must be at the bank. I’m not sure.” He said “I can’t tell you whether the bank kept it.... ” He explained that there were two banks which might have the original note, Barnett Bank and Hamilton Bank.
Rodriguez filed an affidavit in support of summary judgment stating that he was unable to find the original document, but that he had not sold or pledged it. Rodriguez did not file an affidavit from Barnett Bank and Hamilton Bank, however, or other appropriate evidentiary material indicating that the two banks had searched their records for the original note and did not have it. Since Rodriguez had specifically stated in his deposition that the original note may have been left with one or the other of the two specifically identified banks, for summary judgment purposes affidavits or other appropriate evidentiary matters should have been filed establishing that the two banks did not have the original note.
Our decision, however, is without prejudice to appellee to renew his motion for summary judgment upon an appropriate showing in the record.
Reverse.
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Moakley v. Smallwood, 730 So. 2d 286 (Fla. 3d DCA 1999)…ormer wife now suggests that there was a sound reason for issuing the subpoena and taking testimony, namely, that the former wife needed to make a record for her then-pending New York proceeding to reestablish the lost note. See Cardet v. Rodriguez, 673 So. 2d 578 (Fla. 3d DCA 1996); 53 Fla. Jur.2d Evidence and Witnesses § 346 (1995). However, the former wife’s motion did not say so, and it was filed as a post-dissolution motion to compel production of the original note, not a Florida evidentiary hearing anci…
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Deakter v. Augusto Menendez, Jr., 830 So. 2d 124 (Fla. 3d DCA 2002)…ll the statute requires. There is no requirement that Mendelson prove exactly how he lost possession of the note, i.e., whether he lost possession because it was lost or because it was destroyed. Menendez misreads our opinion in Cardet v. Rodriguez, 673 So. 2d 578 (Fla. 3d DCA 1996) as holding that “a [*128] plaintiff seeking to enforce a lost note must conclusively demonstrate that the note was in fact lost.” In Cardet, we merely held that the plaintiff, as the mov-ant for summary judgment, failed to carry b…
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