STRAHAN MANUFACTURING CO., INC., APPELLANT,
v.
LEWIS PIKE AND MILDRED PIKE, HIS WIFE, APPELLEES
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Strahan Manufacturing Co. appealed a summary judgment entered without an answer being filed, which effectively sustained an affirmative defense of estoppel. The court reversed, holding that affirmative defenses cannot be raised in a motion for summary judgment and must be pleaded in an answer.
A summary judgment is improper when it sustains an affirmative defense that was never pleaded. Affirmative defenses must be raised in an answer, not in a motion for summary judgment, regardless of the supporting documentation.
“Summary judgment in these circumstances is improper.”
Establishes the holding that summary judgment cannot be used to sustain an affirmative defense
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Join FLexlaw to unlock all legal intelligenceStrahan Manufacturing, a mobile home manufacturer, sued to recover possession of a trailer or obtain its value from the Pikes, who had the trailer in …
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Appellant, plaintiff below, brings timely appeal from a summary final judgment entered in favor of appellees, defendants below.
Plaintiff, a manufacturer of mobile homes, brought an action against defendants seeking possession of a trailer in defendants’ possession or a judgment for the value of the trailer. The complaint alleged that defendants had in their possession a mobile home manufactured by plaintiff notwithstanding plaintiff’s demand for the return of the trailer. Plaintiff alleged that it manufactured the trailer but has never delivered a manufacturer’s statement Certificate of Origin or Certificate of Title to the trailer to any person and thus “legal title thereto remains in the plaintiff.” Defendants did not file an Answer but filed a Motion for Summary Judgment accompanied by a supporting affidavit and other documents.
Appellant in its first point on appeal contends the trial court erred when it entered the summary final judgment for the defendants. The summary final judgment entered by the lower court in effect sustained an affirmative defense that was never plead.
Summary judgment in these circumstances is improper. The recent case of Meigs v. Lear, Fla.App.1966, 191 So.2d 286, clearly determined that an affirmative defense cannot be set forth in a motion for summary judgment. It said in part at page 288:
“* * * Rules 1.8 and 1.11 of the Florida Rules of Civil Procedure, 30 F.S.A. provide that, with certain exceptions not applicable here, as enumerated in subdivision (b) of Rule 1.11, all defenses to the other party’s claim shall be stated in the pleader’s answer. There is no provision of the rules permitting defenses to be raised in a motion for a summary decree or judgment. The rules specifically provide that the two defenses which the *278defendant here tries to invoke in the present appeal — estoppel and the statute of limitations — constitute affirmative defenses that must be raised in an answer. * * * ” (Emphasis added.)
See also Mark Leach Health Furniture Company v. Thal, Fla.App.1962, 143 So.2d 64.
The court erred in holding on a motion for summary judgment, when no answer had been filed, that appellant was es-topped to claim possession of the mobile home. Therefore, the summary judgment appealed is reversed and this cause remanded for proceedings consistent with this opinion.
LILES, Acting C. J., and HOBSON, J., concur.
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Citator
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B. B. S. v. R. C. B., 252 So. 2d 837 (Fla. 2d DCA 1971)…S.’s motion for summary judg [*839] ment. An affirmative defense must be pleaded and not raised by a motion for summary judgment supported by an affidavit. Meigs v. Lear, Fla.App.1966, 191 So. 2d 286; Strahan Manufacturing Co. v. Pike, Fla.App.1967, 194 So. 2d 277; Mills v. Dade County, Fla.App.1968, 206 So. 2d 227. See also Fink v. Powsner, Fla.App.1958, 108 So. 2d 324; Mark Leach Health Furniture Co. v. Thal, Fla.App.1962, 143 So. 2d 64; Wingreen Company v. Montgomery Ward & Co., Fla.App.1965, 171 So. 2d 40…
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Commerce Nat'l Bank IN Lake Worth v. Safeco Ins. Co. OF Am., 252 So. 2d 248 (Fla. 4th DCA 1971)…attempting to assert an affirmative defense in its motion for summary judgment. An affirmative defense cannot be set forth in a motion for summary judgment, such defense must be pleaded in the answer. Strahan Manufacturing Co. v. Pike, Fla.App.1967, 194 So. 2d 277; Meigs v. Lear, supra; Mark Leach Health Furniture Co. v. Thal, Fla.App.1962, 143 So. 2d 64. Accordingly, it is my opinion that the court erred in granting summary judgment for the defendant, either considering (1) the pleadings without regard to t…1 / 2
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Playa DEL MAR Ass'n, Inc. v. Fla. Power & Light Co., 481 So. 2d 943 (Fla. 4th DCA 1985)…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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meigs v. Lear, 191 So. 2d 286 (Fla. 1st DCA 1966)
- Dotson v. Maddox, 143 So. 2d 64 (Fla. 3d DCA 1962)