Home Loan Co. Inc. of Boston v. Sloane Co. of Sarasota

240 So. 2d 526, 1970 Fla. App. LEXIS 5628

• Court: District Court of Appeal of Florida
• Decided: October 30, 1970
• Docket: No. 70-139
• Status: Published

Opinion

PER CURIAM.

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.

The 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.