HOME LOAN COMPANY INCORPORATED OF BOSTON, A FLORIDA CORPORATION, APPELLANT,
v.
THE SLOANE COMPANY OF SARASOTA, A FLORIDA CORPORATION, APPELLEE
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Having reviewed the briefs and record on appeal, we find that the trial judge was correct in entering the summary final judgment in favor of appellee, The Sloane Company of Sarasota, and therefore affirm the judgment on the counterclaim. A party opposing a motion for summary judgment will not be permitted to alter the position of his previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. McKean v. Kloeppel Hotels, Inc., Fla.App.1965, 171 So.2d 552.
*527The summary judgment in favor of appellant Home Loan Company Incorporated of Boston must be reversed. Appellant had not moved for a summary judgment on the main cause relating to the promissory note. No sworn instrument had been placed in the record to support such a judgment, the claim resting solely on an unsworn complaint to which appel-lee had filed an answer. Further, it was not shown that the cause of action stated by the complaint grew out of the same transaction as the one stated in the counterclaim.
Affirmed in part; reversed in part and remanded.
HOBSON, C. J., and LILES and PIERCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Inman v. The Club ON Sailboat KEY, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977)…ry judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So. 2d 526 (Fla.2d DCA 1970). Appellant was attempting to raise new issues for the first time in her motion for rehearing and for leave to amend; and summary judgment already having been entered, the trial judge did not abuse his discretion in denying the pro…
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Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981)….1954), that a party is not permitted to alter a previously asserted position simply to avert summary judgment. Accord, Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Home Loan Co., Inc. of Boston v. Sloane Co. of Sarasota, 240 So. 2d 526 (Fla. 2d DCA 1970); Williams v. Duggan, 172 So. 2d 844 (Fla. 1st DCA 1965); Tri-County Produce Distributors, Inc. v. Northeast Production Credit Ass'n, 160 So. 2d 46 (Fla. 1st DCA 1963); Bente v. Nelson, 156 So. 2d 17 (Fla. 2d DCA 1963); Kramer v. L…
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Md. Cas. Co. v. Murphy, 342 So. 2d 1051 (Fla. 3d DCA 1977)…a copy of the policy which Maryland claims to be the original. The law looks with disfavor on a party’s attempt to change his testimony to avoid summary judgment. As stated in Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So. 2d 526 (Fla.2d DCA 1970), “. . .A party opposing a motion for summary judgment will not be permitted to alter the position of his previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. . . (citation omi…
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- McKEAN v. Kloeppel Hotels, Inc., 171 So. 2d 552 (Fla. 1st DCA 1965)