Opinion
Nos. 92-3102, 92-3679.
February 9, 1994.
Appeal from the Circuit Court, Duval County, Robert M. Foster, J.
Stephen H. Durant of Martin, Ade, Birchfield Mickler, P.A., Jacksonville, for appellant.
Clay Holtsinger of Law Firm of Joseph M. Paniello, Tampa, for appellee.
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.