Opinion
No. 88-0249.
July 13, 1988.
Appeal from the Circuit Court, Broward County, Frank Orlando, J.
L. Joseph Hoffman of Spear and Hoffman, Coral Gables, for appellee.
Alec Ross of Alec Ross Law Office, North Miami Beach, for appellant.
We perceive the order here being appealed to be a partial summary judgment determining the issue of liability in favor of a party seeking affirmative relief. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
At the time appellee's motion for summary judgment was granted, there had been no pleading in response to appellant's affirmative defenses. Appellee had not shown that it was the holder of the note in its entire amount, nor that it had given the default notice required by a contractual provision. Thus there remained genuine issues of material fact.
Albeit the open issues may have been resolved subsequently, we reverse and remand. Summary judgment is determined on what is before the court at the time the order is rendered. A court should not decide the issue of liability on an inadequate record, while making grant of final judgment contingent on correcting the deficiency.
DOWNEY and GLICKSTEIN, JJ., concur.
STONE, J., dissents with opinion.
I would affirm. In the alternative, the appeal should be dismissed for lack of jurisdiction under rule 9.130, Florida Rules of Appellate Procedure. The "Order On Motion For Summary Judgment" in this case did not, in fact, determine liability with finality.