Sunday, January 24, 2010

Summary Judgment Not Appropriate When Homestead Status Is Factual Issue

In Barton v. Oculina Bank (4D07-4707), the Fourth District reversed a summary judgment and decided that "a summary judgment is precluded where there is a disputed question of material fact on whether the property in question is the appellant’s homestead."  Interestingly, the appellant did not raise the homestead issue in the trial court and raised it for the first time in the briefs on appeal.  The court held:
Whether a property is a homestead is an issue of fact. Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448, 452 (Fla. 1943). The appellant has asserted that the property was his homestead in 2004. It is undisputed that he owned and lived in the residence at the time the mortgage was assigned to the appellee in 2004. Later that year, the home on the property was destroyed by a hurricane, and at the time he gave his deposition, the appellant was in the process of getting permits to build a new home on the lot.
As a result, the claim that the property is the appellant’s homestead raises disputed issues of material fact that make summary judgment improper. Fla. R. Civ. P. 1.510(c).


Post a Comment