H. L. MILLS AND KATHRYN MILLS, APPELLANTS,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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Appellants challenged a Dade County Zoning Resolution as an unconstitutional delegation of legislative power and sought declaratory and injunctive relief. The lower court entered summary judgment for the county based on equitable estoppel, but the appellate court reversed because the county failed to raise estoppel through proper pleading procedures.
An affirmative defense such as estoppel cannot be asserted in a motion for summary judgment; it must be raised through proper pleading. Because estoppel may have been the basis for the summary decree and was not properly raised, the judgment must be reversed and remanded to allow the county to file an answer and raise proper defenses.
“a summary judgment proceeding cannot be used as a substitute for the parties pleadings, and, therefore, affirmative defenses may not be asserted in the motion for summary judgment”
Establishes the core procedural rule that affirmative defenses must be properly pleaded and cannot be raised solely through a summary judgment motion
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Join FLexlaw to unlock all legal intelligenceAppellants filed a complaint for declaratory decree and injunction challenging the validity and severability of a portion of a Dade County Zoning Reso…
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The appellants, as plaintiffs, brought a complaint for declaratory decree, injunction and other relief alleging that a portion of a Dade County Zoning Resolution was invalid and severable from the remainder of the Resolution. The appellee did not file an answer but did file a motion for summary decree on the grounds that there was no genuine issue of material fact. Also set forth in the motion was the following, “ * * * and in support hereof the defendant will show inter alia, that the plaintiffs are equitably estopped to take this action. * * * ” An affidavit of the Director of the Dade County Building and Zoning Department was filed in support of the motion for summary decree.
The lower court entered a final summary decree in favor of appellee. On this appeal, appellants contend that estoppel is not applicable, and that the portion of the Resolution challenged is an unconstitutional delegation of legislative power. The ap-pellee contends that appellants are estopped from pursuing their remedy, and further, that there are sufficient legislative guidelines within the Resolution.
Although not raised by the appellants, we are presented with a difficult procedural problem. The appellee did not raise the affirmative defense of estoppel by an appropriate pleading, but rather, by a motion for summary decree supported by an affidavit. Therefore, we are presented with the question of whether an affirmative defense can be raised in a motion for summary decree. The recent case of Meigs v. Lear, Fla.App.1966, 191 So.2d 286, has clearly established the principle that a summary judgment proceeding cannot be used as a substitute for the parties pleadings, and, therefore, affirmative defenses may not be asserted in the motion for summary judgment. This rule was followed in Strahan Manufacturing Co. v. Pile, Fla. App.1967, 194 So.2d 277, where defendants’ motion for summary judgment based on estoppel was granted in the lower court without the affirmative defense being raised in any pleading. The summary judgment appealed was reversed and remanded. See also Mark Leach Health Furniture Company v. Thai, Fla.App. 1962, 143 So.2d 64.
*228Since it is possible that estoppel was the basis for the summary decree, and since this defense was not properly raised, we must reverse and remand for further proceedings. The appellee shall be given an opportunity to answer and raise proper defenses.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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B. B. S. v. R. C. B., 252 So. 2d 837 (Fla. 2d DCA 1971)…tive 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 408. B.B.S.’s second point involves the correctness o…
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Playa DEL MAR Ass'n, Inc. v. Fla. Power & Light Co., 481 So. 2d 943 (Fla. 4th DCA 1985)…eading. 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.…
Authorities Cited
- Meigs v. Lear, 191 So. 2d 286 (Fla. 1st DCA 1966)
- Dotson v. Maddox, 143 So. 2d 64 (Fla. 3d DCA 1962)
- Strahan Mfg. Co., Inc. v. Pike, 194 So. 2d 277 (Fla. 2d DCA 1967)