Opinion
No. 75-1920.
January 14, 1977.
Appeal from Circuit Court, Orange County; Claude R. Edwards, Judge.
Michael B. Swindle, Orlando, for appellant.
Charles M. McCarty, Orlando, for appellees.
Upon review of the briefs, record on appeal and oral argument, and in light of the recent decision of the Supreme Court of Florida in Moore Meats, Inc. v. Strawn, in for Seminole Cty., 313 So.2d 660 (Fla. 1975), we are of the opinion that the order granting defendants' motion for judgment on the pleadings should be vacated and set aside.
A review of the judgment below reflects that it was predicated primarily upon plaintiff's failure to file, within 20 days, (see Rule 1.140(a), Fla.R.Civ.P.) a reply to affirmative defenses raised by the defendants. According to the holding in Moore, it is only when "new matter" is sought to be asserted to avoid the affirmative defense that a reply is required; otherwise, the mere assertion of affirmative defenses does not require a responsive pleading for such affirmative defenses to be taken as denied.
In light of the circumstance that the pleadings reveal that there are issues of fact to be resolved and in light of the principles pertaining to the disposition of a motion for judgment on the pleadings, the appealed order was erroneous. Williams v. Howard, 329 So.2d 277 (Fla. 1976); Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975).
It is unnecessary for us to consider the other contentions raised by the plaintiff nor should our disposition herein be construed as passing upon the merits of any summary disposition. The final order granting motion for judgment on the pleadings is vacated and set aside and the cause remanded for further proceedings consistent herewith.
MAGER, C.J., CROSS, J., and JOANOS, JAMES E., Associate Judge, concur.