Smith v. Barrett

564 So. 2d 582, 1990 Fla. App. LEXIS 5276, 1990 WL 102702

• Court: District Court of Appeal of Florida
• Decided: July 25, 1990
• Docket: No. 89-1226
• Status: Published

Opinion

DELL, Judge.

This appeal is from a final summary judgment entered in favor of appellees on their counterclaim for foreclosure of a mortgage. We reverse.

Two weeks before the scheduled hearing on appellees’ motion for summary judgment, appellants filed a motion to amend their answer to assert the affirmative defenses of fraud in the inducement and failure of consideration. Appellants made two unsuccessful attempts to have their motion heard prior to the hearing on appellees’ motion for summary judgment. At the hearing on appellees’ motion, the trial court denied appellants’ motion for leave to amend and to continue the hearing. The trial court then entered summary judgment in favor of appellees.

Appellants contend that the trial court erred when it denied their motion for leave to file an amended answer. Appellee responds that the documentary evidence negates appellants’ affirmative defenses. We do not find appellees’ argument persuasive. The trial court’s denial of appellants’ motion precluded any consideration of the potential issues created by the proposed affirmative defenses. The trial court should have granted appellants’ motion for leave to amend and granted them the opportunity to present such evidence as they may have had in support of their affirmative defenses. Fla.R.Civ.P. 1.190.

Accordingly, we reverse the final summary judgment and we remand this cause for further proceedings consistent with this opinion. See Leavitt v. Garson, 528 So.2d 108 (Fla. 4th DCA 1988).

REVERSED and REMANDED.

DOWNEY and GUNTHER, JJ., concur.