Summary
finding that "it was error to enter judgment based upon `release' when that affirmative defense had never been asserted in a pleading"
Summary of this case from American Title Ins. Co. v. CarterOpinion
Nos. 85-242, 85-741.
December 31, 1985. Rehearing and Rehearing En banc Denied February 12, 1986.
Appeal from the Circuit Court, Broward County, H. Mark Purdy and J. Cail Lee, JJ.
Paul B. Butler, Jr., of Butler, Burnette, Wood and Freemon, Tampa, and Robert J. Manne and Steven B. Lesser of Becker, Poliakoff Streitfeld, P.A., Fort Lauderdale, for appellant.
John R. Hargrove of McCune, Hiaasen, Crum, Ferris Gardner, P.A., Fort Lauderdale, for appellees — Coral Ridge Properties, Inc., and Westinghouse Elec. Corp.
Playa del Mar Association, Inc., appeals two summary final judgments in cases arising from the same factual incident and involving the identical issue on appeal. Appellant's complaints were responded to by motions for summary judgment based upon settlement of prior litigation involving similar issues, releases given by appellant in that litigation, and an order of dismissal finally disposing of appellant's claims. No answer had been filed. Summary judgment was granted in each of the two cases.
Regardless of whether appellant was improperly precluded from introducing evidence in support of its claim of mutual mistake with regard to the release (which seems likely based upon the rule in such cases as Ayr v. Chance, 372 So.2d 1000 (Fla. 4th DCA 1979)), it was error to enter judgment based upon "release" when that affirmative defense had never been asserted in a pleading. Fla.R.Civ.P. 1.110(d); Strahan Manufacturing Co. v. Pike, 194 So.2d 277 (Fla. 2d DCA 1967); Meigs v. Lear, 191 So.2d 286 (Fla. 1st DCA 1966). See also Couchman v. Goodbody Co., 231 So.2d 842 (Fla. 4th DCA 1970) and Mills v. Dade County, 206 So.2d 227 (Fla. 3d DCA 1968). We therefore reverse.
REVERSED AND REMANDED.
DOWNEY and WALDEN, JJ., concur.