
    Connie RILEY and George Riley, Jr., her husband, Appellants, v. FRED OWENS MOTORS, Appellee.
    No. 85-307.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 1986.
    Ward T. Berg, Daytona Beach, for appellants.
    Lester A. Lewis and F. Bradley Hassell of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellee.
   COBB, Chief Judge.

In this case, the appellants challenge an adverse summary judgment and the trial court’s denial of their motion for leave to amend. That belated motion, however, was not predicated upon anything in the record before the trial judge. Therefore, the Hart and Roberts cases, relied upon by the appellants, actually support the appellee — because those cases were each expressly predicated upon record evidence before the trial judge which reasonably suggested that a plaintiff, if allowed to amend, could state a valid cause of action. See also Coudry v. City of Titusville, 438 So.2d 197 (Fla. 5th DCA 1983).

In the instant case, the appellants are relying upon a deposition which they admittedly failed to file for the record and the consideration of the trial judge, even though it was available to them prior to the summary judgment hearing. The unequivocal evidence before the trial judge, upon which he based his judgment, was that at the time of the alleged accident the vehicle operated by the alleged tortfeasor, Noel, did not belong to Fred Owens Motors, and Noel was not acting within the scope of any business or agency relationship with Owens. See Landers v. Milton, 370 So.2d 368 (Fla.1979). There was no contrary evidence ’ presented to the trial judge, and none to suggest that the complaint against Owens could be legitimately amended to base liability on agency, rather than ownership of the vehicle. The Owens affidavit, relied upon by the dissent as suggesting such liability, reads in relevant part:

3. On the date of the accident, Mr. Noel had borrowed a dealer plate from Fred Owens Motors so that he could use the vehicle described in the complaint to perform an errand for me. That' errand was to pick up another vehicle, load it onto this vehicle, which was an auto hauler, and deliver it to my dealership. I did not own the vehicle involved in this accident nor did I have any interest in or right to that vehicle.
4. Mr. Noel had completed this task and was in the process of driving the vehicle back to his home at the time of the accident. He had completed the errand and had stopped at his place of employment, Stan’s Transmission, but not to perform any service for me.
5. At the time of the accident, Mr. Noel was exiting Stan’s Transmission. At such time, he was not involved in performing any services or errand for me or for Fred Owens Motors.

AFFIRMED.

ORFINGER, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The issue in this case is whether or not the trial court properly entered a final summary judgment in favor of Fred Owens Motors, defendant below, without allowing the Rileys, plaintiffs below, leave to amend their complaint. Although this procedure is logically an anomaly, it has been approved by the Florida Supreme Court. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1964); Roberts v. Braynon, 90 So.2d 623 (Fla.1956). I conclude that in this case, it was error for the trial court not to allow appellants leave to file an amended complaint after entry of the summary judgment.

In Hart, supra, the court said:

It might well be that the evidence offered in support or opposition to the motion revealed that plaintiff had misstated his position and the ends of justice would require that he be allowed to amend his complaint.

159 So.2d at 240. This duty to allow leave to amend applies where “the matters presented indicate that the unsuccessful party may have a cause of action or a defense not pleaded ...” (emphasis supplied). 159 So.2d at 240.

The application of this rule to this case turns on whether or not the appellants’ cause of action — respondeat superior based on an employer-employee relationship with Fred Owens Motors — which was not pleaded by the Rileys, was a “matter presented” to the trial judge at the time of the summary judgment. That is a close question in this case, but on balance I think it was. Leave to amend pleadings should be given freely when justice so requires. Dingess v. Florida Aircraft Sales and Leasing, Inc., 442 So.2d 431 (Fla. 5th DCA 1983); New River Yachting Center, Inc. v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1981), review denied, 415 So.2d 1360 (Fla.1982); Bostwick v. Bostwick, 346 So.2d 150 (Fla. 1st DCA 1977).

The Rileys filed suit against Fred Owens Motors for damages suffered by George Riley in an automobile accident with a car allegedly owned by appellee and driven by William Noel. Owens presented an affidavit in support of its motion for summary judgment denying that it owned the car involved in the accident. However, the affidavit went on to say Noel had borrowed a license plate from Owens so that he could drive an unlicensed vehicle to perform an errand for Owens. The affidavit stated Noel had completed his errand, and was in the process of returning to his home when the accident occurred. In an unfiled deposition taken shortly before the summary judgment hearing, Noel testified that he was an employee of Owens, acting in the scope of his employment at the time the accident occurred.

It would have been much better procedure in this case for appellants to have filed Noel’s deposition prior to the summary judgment hearing. Had that been done, Roberts and Hart would clearly have been applicable. I think, however, that Owens’ affidavit, by its own verbiage, discloses that some sort of employer-employee relationship might have existed between Owens and Noel. This was buttressed by appellants’ counsel’s ore tenus motion at the summary judgment hearing, seeking to amend the complaint to state a cause of action based on an employer-employee relationship. Under these facts I think the filing of an amended complaint should have been allowed. 
      
      . Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963); Roberts v. Braynon, 90 So.2d 623 (Fla.1956).
     
      
      . Coudry v. City of Titusville, 438 So.2d 197, 201 (Fla. 5th DCA 1983).
     