Opinion
No. 75-1173.
March 24, 1976.
Appeal from the Circuit Court, Lake County, W. Troy Hall, Jr., J.
Lou Tally of Tally Moore, Umatilla, for appellants.
Frank T. Gaylord of Gaylord, Ray Gaylord, Eustis, for appellee.
Albert Clements, appellee, brought an action to foreclose a mortgage on certain real property owned by appellants, Joseph and Ruth Barentine. Appellants filed an answer in which they admitted non-payment but denied default. Appellants raised an affirmative defense. They alleged that an extension on the payments had been granted and the extention agreement reduced to writing.
Appellee moved for a "judgment on the pleadings," contending that the extension agreement on its face showed a lack of consideration which entitled him to a judgment as a matter of law. The court treated the motion as a motion to strike affirmative defenses. The court granted the motion to strike, with appellants being granted leave to amend. Appellants' amended answer stated that the extension contract was entered "for valuable consideration." The contract itself made no mention of consideration.
The trial court found that the extension agreement was not binding on the parties since the appellants undertook no additional obligations. The court found that the term "for valuable consideration" was a conclusion of law. As a result it could not be considered in the determination of a motion for judgment on the pleadings. A final judgment was entered in favor of appellee. We reverse.
The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts. Bradham v. Hayes Enterprises, Fla.App.1st, 1975, 306 So.2d 568. For the purpose of the motion, all well-pleaded facts in the non-moving party's pleadings are admitted. Wilkins v. Tebbetts, Fla.App.3rd 1968, 216 So.2d 477. Here the appellants raised an affirmative defense which they had the burden of establishing by a preponderance of the evidence. Their allegation that the extension agreement was executed for valuable consideration raised an issue of fact that precluded a judgment on the pleadings. See Mayflower v. Suskind, Fla.App.3rd, 1959, 112 So.2d 394. Appellees are, of course, free to utilize the various means of discovery at their disposal and seek a summary judgment.
REVERSED and REMANDED for further proceedings consistent with this opinion.
McNULTY, C.J., and SCHEB, J., concur.