SUNRISE LAKES CONDOMINIUM APARTMENTS, PHASE III, INC. 3, APPELLANT,
v.
LOUIS HECHTMAN, ET UX., APPELLEES; LOUIS HECHTMAN, ET AL., APPELLANTS, V. SUNRISE LAKES CONDOMINIUM APARTMENTS, PHASE 3, INC., APPELLEE
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The court reversed summary judgment for the unit owners and remanded because the trial court improperly granted summary judgment despite disputed material facts and because estoppel was not properly pleaded as an affirmative defense.
A trial court cannot grant summary judgment when material factual disputes exist, even if both parties move for summary judgment, and estoppel cannot be considered if not specifically pleaded as an affirmative defense.
[1] An affirmative defense of estoppel must be specifically pleaded in the answer or it is waived and cannot be considered by the trial court.
[2] Material factual disputes may exist and preclude summary judgment even when both parties file cross-motions for summary judgment.
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Disputed issues of fact may arise notwithstanding each side claiming entitlement to summary judgment.”
Court explaining that both parties moving for summary judgment does not eliminate factual disputes.
Sunrise Lakes Condominium sought a mandatory injunction to require unit owners Louis and Mrs. Hechtman to remove a washer and dryer from their condomi…
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WESSEL, JOHN D„ Associate Judge.
Appellant, Sunrise Lakes Condominium Apartments, Phase III, Inc. 3, seeks reversal of an adverse summary final judgment allowing the appellees, Louis Hechtman and his wife, to maintain during their occupancy a washer and dryer in their condominium unit. Appellees cross appealed the trial court’s denial of an award of costs and attorney fees.
Appellant sought by complaint a mandatory injunction against the appellee unit-owners to remove a laundry washing machine and dryer from their unit installed in violation of the Declaration of Condominium. Appellees’ answer failed to raise the affirmative defenses of estoppel and waiver. Nonetheless, the trial court concluded that the appellant was estopped from requiring the removal of the washing machine and dryer. Estoppel must be specifically pled or it is considered waived. W.T. Rawleigh Co. v. Langford, 112 Fla. 487, 150 So. 592 (1933); Department of Revenue v. Hobbs, 368 So. 2d 367 (Fla. 1st DCA 1979). Appellant further maintains that it was error for the trial court to deny its motion for summary final judgment. The trial court found that because both sides moved for summary judgment, there must not be any disputed issues of fact. Unfortunately, this is not the case. Disputed issues of fact may arise notwithstanding each side claiming entitlement to summary judgment. Daniel Laurent, Inc. v. Coral Television Corp., 431 So. 2d 1047 (Fla. 3d DCA 1983). It is clear that numerous issues of disputed fact remain which would preclude summary final judgment for either side.
REVERSED and REMANDED.
ANSTEAD, C.J., and HURLEY, J., concur.
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Citator
Cited By
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Kyra Phillips and Wayne Phillips v. Unicare Amelia Island, Inc., 458 So. 2d 50 (Fla. 1st DCA 1984)…sivity defense by not asserting these matters until her motion for rehearing, as opposed to her reply. See Florida First National Bank at Pensacola v. Martin, 449 So. 2d 861, 865 (Fla. 1st DCA 1984); Sunrise Lakes Condominium Apartments v. Hechtman, 446 So. 2d 272 (Fla. 4th DCA 1984). Second, we agree with the defendant that the status of an employment relationship can be determined as a matter of law. See Sosa v. Knight-Ridder Newspapers, Inc., 435 So. 2d 821, 826 (Fla.1983). Third, and the crux of this ap…
Authorities Cited
- Dep't OF Revenue v. Hobbs, 368 So. 2d 367 (Fla. 1st DCA 1979)
- W. T. Rawleigh Co. v. Langford, 112 Fla. 487 (Fla. 1933)
- Daniel Laurent, Inc. v. Coral Television Corp., 431 So. 2d 1047 (Fla. 3d DCA 1983)
- Rand v. Mayme J. Peppard, 112 Fla. 440 (Fla. 1933)