CAROLYN A. WASHINGTON, APPELLANT,
v.
FLEET MORTGAGE CORPORATION, APPELLEE
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The court held that a disputed issue of material fact existed regarding whether the appellee had notice of a problem or defect, precluding summary judgment.
The appellee sued to foreclose on a mortgage after the appellant defaulted. The appellee moved for summary judgment, asserting it obtained the note an…
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PER CURIAM.
Appellant Carolyn Washington (Washington) appeals a summary judgment granted in favor of appellee Fleet Mortgage Corporation (Fleet). We reverse.
Fleet sued Washington to foreclose on a mortgage on which she had defaulted. Fleet moved for summary judgment, arguing that there were no disputed .issues of material fact, on its claim that it had obtained the note and mortgage without notice of any problem or defect. Under Florida law, “[a] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla.1985) (citing Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977) and Holl v. Talcott, 191 So. 2d 40 (Fla.1966), cert. denied, 232 So. 2d 181 (Fla.1969)). Under the particular facts involved in this case, we find that an issue of disputed material fact exists as to whether Fleet was on notice. Thus, the trial court erred in granting summary judgment.
Accordingly, we reverse the order on appeal, and remand the case for further proceedings. On remand, the court may address anew the propriety of allowing Washington to amend her answer. We also provisionally grant Washington attorney’s fees, to be determined by the ultimate outcome of the case, with the amount of such fees, if any, also to be determined by the trial court.
REVERSED AND REMANDED.
BOOTH, LAWRENCE and DAVIS, JJ. concur.
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White v. Whiddon, 670 So. 2d 131 (Fla. 1st DCA 1996)…mmary judgment is only appropriate when the movant has shown conclusively that no genuine issues of material fact remain; every inference is drawn in favor of the party against whom summary judgment is sought. See Washington v. Fleet Mortgage Corp., 631 So. 2d 364 (Fla. 1st DCA 1994), citing Holl v. Talcott, 191 So. 2d 40 (Fla.1966). “Particular caution should be employed when granting summary judgment in negligence actions.” Lindsey v. Bill Arflin Bonding Agency, 645 So. 2d 565 (Fla. 1st DCA 1994), citing Mo…
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Berenson v. S. Baptist Hosp. OF Fla., Inc., 646 So. 2d 809 (Fla. 1st DCA 1994)…tem and the security guard who sent Berenson up the stairwell, to conclusively refute the allegations of negligence. Moore v. Morris, 475 So. 2d 666 (Fla.1985); Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Washington v. Fleet Mtg. Corp., 631 So. 2d 364 (Fla. 1st DCA 1994). The eases relied upon by the dissent are not contra. With one exception these cases are plenary appeals from jury verdicts, not involving summary judgment law as it has evolved in this state. At trial, appellant will have the…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- S. Indus. Sav. Bank v. Greene, 232 So. 2d 181 (Fla. 1969)
- Est. of Maude L. Wood, 232 So. 2d 181 (Fla. 1969)