MICHAEL BENDE, INDIVIDUALLY, AND MICHAEL BENDE, TRUSTEE OF THE MICHAEL BENDE REVOCABLE TRUST, APPELLANTS,
v.
FURR AND COHEN, P.A., PROFIT SHARING PLAN AND LAVALLE, BROWN, RONAN & SOFF, P.A., APPELLEES
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The Fourth District Court of Appeal affirmed a summary judgment of foreclosure against Michael Bende and his revocable trust. The court rejected multiple defenses raised for the first time on appeal, finding they were not properly pleaded, lacked evidentiary support, and failed as a matter of law.
Summary judgment of foreclosure was properly granted. Appellants' multiple defenses raised for the first time on appeal were not properly pleaded, lacked evidentiary support through sworn statements, and would have failed as a matter of law regardless of timing.
[1] A party seeking to raise new defenses at the summary judgment stage must obtain leave of court to amend their pleadings.
[2] Conclusory allegations of fraud or duress are insufficient to defeat a motion for summary judgment without supporting sworn evidence or allegations of fact.
Previewing 2 of 6 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“Appellants' attempt to argue additional defenses, claimed at the last minute, was properly not considered by the trial court where Appellants had not sought leave of court to amend their pleadings.”
Establishes that new defenses raised without proper amendment procedure are properly excluded from consideration
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Join FLexlaw to unlock all legal intelligenceAppellees executed a note and mortgage against Appellants in settlement of litigation. Appellants failed to pay the note and mortgage. Appellants rais…
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PER CURIAM.
We affirm a summary final judgment of foreclosure and award of fees and costs.
With regard to Appellants’ multiple issues raised on appeal, a review of the record reflects that they have raised several issues here that were not raised in the answer and affirmative defenses, failed to file affidavits or other sworn statements in opposition to Appellees’ motion for summary judgment, and otherwise failed to demonstrate issues of fact.
Appellants’ attempt to argue additional defenses, claimed at the last minute, was properly not considered by the trial court where Appellants had not sought leave of court to amend their pleadings. Sunshine Kitchens, Inc. v. Mallin, 388 So. 2d 1260 (Fla. 3d DCA 1980); Fla. R. Civ. P. 1.190(a). Further,' even had the court considered the new issues, which included fraud and duress claims, the con-clusory allegations were unsupported by sworn evidence or allegations of fact. Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995)(citing Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)).
Appellants, for the same reasons, failed to rebut Appellees’ sworn proofs of execution of the note and mortgage (executed in settlement of litigation) and failure to pay. Holl v. Talcott, 191 So. 2d 40, 45 (Fla.1966). We further conclude that the allegations raised in Appellants’ brief do not support legal defenses of fraud and undue influence and that Appellants have failed to demonstrate an abuse of discretion in denying a continuance requested at the summary judgment hearing. Additionally, Appellants’ claims of invalid service of process are refuted by the record and their claims of homestead exemption, raised on appeal, even if properly pled, would have failed as a matter of law.
As did the trial court, we conclude that no material issues of fact are present and summary judgment is proper. STEVENSON, C.J., STONE, J., and BATEMAN, THOMAS H., Ill, Associate Judge, concur.
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Cited By
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Beverly v. Gumren, 260 So. 3d 1193 (Fla. 3d DCA 2019)
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995)
- Rodger Sheets v. Sheets, 405 So. 2d 1039 (Fla. 3d DCA 1981)
- Seinfeld v. Commercial Bank & Tr. Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)
- Sunshine Kitchens, Inc. v. Mallin, 388 So. 2d 1260 (Fla. 3d DCA 1980)