Opinion
No. 78-2025.
July 6, 1979.
Appeal from the Circuit Court, Pasco County, Edward H. Bergstrom, Jr., J.
James D. Wing of Carlton, Fields, Ward, Emmanuel, Smith Cutler, Tampa, for appellant.
Michael A. Houllis, Seminole, for appellee.
This is an appeal from a final summary judgment entered in favor of appellee.
Appellee did not conclusively show the absence of a genuine issue of material fact concerning appellant's contention that the original lease was modified by a subsequently recorded reciprocal easement agreement, of which appellee is alleged to have had constructive notice. It is well settled that summary judgment is not to be granted unless the moving party can demonstrate that there is no genuine issue of material fact which, if taken in a light most favorable to the nonmoving party, would entitle the nonmoving party to relief. Holl v. Talcott, 191 So.2d 40 (Fla. 1966). The affidavit filed by appellant in opposition to the motion for summary judgment contains allegations sufficient to create an issue of material fact which must be resolved by the trier of fact.
Furthermore, we believe that under the circumstances here the trial court should have granted appellant's motion for leave to amend its pleadings, which was filed after entry of the order granting appellee's motion for summary judgment but before final summary judgment was entered. See Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975); see also Schurkman v. Stolar, 347 So.2d 653 (Fla. 3d DCA 1977); Watier v. REW Crane Service, Inc., 240 So.2d 177 (Fla. 4th DCA 1970), modified, 257 So.2d 249 (Fla. 1971).
Accordingly, the order of final summary judgment is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
SCHEB and OTT, JJ., concur.