593 So. 2d 1206 | Fla. Dist. Ct. App. | 1992
This is an interlocutory appeal
The amended complaint affirmatively alleged (as it must) that appellee was the owner and holder of the mortgage. In its answer, appellant denied this allegation. In opposition to the motion for summary judgment, appellant filed a memorandum raising the issue of whether appellee was the holder of the note and mortgage, based principally on statements made by appellee in filings in other litigation that it had previously assigned its interest to third parties and that subsequent assignments had also taken place. Copies of these filings were attached to the memorandum. The record does not contain a transcript of the hearing on appellee’s motion for summary judgment held on May 13,1991, but a written order entering partial summary judgment was signed on the same date.
Appellant timely moved for rehearing,
Under the circumstances, we believe the trial court erred in granting the summary judgment and denying the motion for rehearing. Certainly, by the time of the rehearing, it was apparent that summary judgment in favor of Lake Bryan had been improper. As appellee by then itself conceded, it had not owned the entire note and mortgage on May 13, 1991 and there was a material issue of fact as to ownership of the note and mortgage on that date.
Moreover, the trial court’s granting of the appellee’s post-judgment motion to amend the complaint to change the essential allegations on which the summary judgment was premised required vacation of the summary judgment.
REVERSED and REMANDED.
. Fla.R.App.P. 9.130(a)(3)(C)(iv).
. Nerbonne also subsequently sought leave to amend its answer to assert many new defenses, including ownership of the note, but this motion also was denied. On this record, appellant has failed to convince us that the trial court’s decision to refuse leave to amend was an abuse of discretion.