Summary
reversing an order striking an affirmative defense where “[t]he defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact ... created”
Summary of this case from Gonzalez v. Nafh Nat'l BankOpinion
No. 76-436.
May 21, 1976.
Appeal from the Circuit Court, Palm Beach County, Don T. Adams, J.
David C. Park, of Carlton, Fields, Ward, Emmanuel, Smith Cutler, Tampa, for appellant.
Eugene F. Bie, North Palm Beach, for appellee Walter Lastition.
The trial court erred in prematurely adjudicating the merits of defendant's affirmative defense via a motion to strike as sham or as frivolous under Rules 1.140 and 1.150, F.R.C.P. The defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact there created (such as whether there was consideration and whether notice was given) Meadows v. Edwards, 82 So.2d 733 (Fla. 1955); Guaranty Life Insurance Company v. Hall Brothers Press, Inc., 138 Fla. 176, 189 So. 243 (1939). The earliest proper procedural consideration of such issues would be under Rule 1.510, F.R.C.P.
REVERSED.
WALDEN, C.J., and CROSS and MAGER, JJ., concur.