Opinion
No. 76-1626.
November 29, 1977. Rehearing Denied January 19, 1978.
Appeal from the Circuit Court, Dade County, Francis X. Knuck, J.
McCormick, Bedford Backmeyer and Robert A. Geiss, Miami, for appellant.
Therrel, Baisden, Stanton, Stillman, Brown Wood and Howard A. Setlin, Miami Beach, for appellee.
Before HENDRY, C.J., and BARKDULL and HAVERFIELD, JJ.
This appeal is taken from a summary final judgment of foreclosure, rendered in favor of appellee/plaintiff, the construction lender and mortgagee, and against various junior lienors, including appellant/defendant.
After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that neither the affirmative defenses raised by appellant in its answer to appellee's complaint for foreclosure, nor its counterclaim for a superior equitable lien, raised any genuine issues of material fact prohibiting the entrance of a summary final judgment in favor of appellee.
The only question of merit concerning the propriety of the summary judgment is by way of the chancellor's refusal to permit appellant to file an amended counterclaim and amended affirmative defenses, the contents of which might have raised a genuine issue of material fact, i.e., that appellant had completed work on the project prior to the execution of the note and mortgage, creating a superior equitable lien in favor of appellant.
In that the motion to amend the affirmative defenses and counterclaim was filed one day before the hearing on appellee's motion for summary judgment and the allegations raised by the amended pleadings were contradictory to prior pleadings and affidavits which stated that labor and services were first performed on the property after the note and mortgage were executed, we cannot say that the chancellor abused his discretion in denying the motion to amend. Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So.2d 526 (Fla. 2d DCA 1970); Houston Texas Gas Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla. 2d DCA 1961).
Accordingly, the summary final judgment is hereby affirmed.
Affirmed.