ESTHER TAX AND BURTON TAX, APPELLANTS,
v.
LESTER KEISER D/B/A LAS BRISAS APARTMENTS, SOUTH AND AETNA INSURANCE COMPANY, APPELLEES
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The appellate court affirmed summary judgment for the landlord based on an exculpatory clause in a lease agreement, but without prejudice to allow the tenants to amend their pleadings to raise factual defenses regarding whether the exculpatory clause applied during the pre-lease occupancy period.
Summary judgment for the defendants was affirmed, but the appellate court reversed the trial court's refusal to allow the tenants to amend their pleadings by filing a reply to address potential factual issues regarding whether the exculpatory clause applied during the period between November 21 and December 1, 1972.
[1] A summary judgment is appropriate when a party fails to reply to an affirmative defense as required by procedural rules.
[2] A court should allow a party to amend their pleadings to raise facts that may avoid an affirmative defense, even after a motion for summary judgment has been heard.
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Join FLexlaw to unlock all legal intelligence“The record before the trial court reflects that the written lease was not effective on its face until December 1, 1972. The record is silent as to whether there was some other agreement between the parties covering the period between November 21, 1972, and December 1, 1972, which could have rendered the exculpatory clause inapplicable. Thus there may well be a genuine issue of material fact existing between the parties hereto.”
Establishes that factual disputes existed regarding the applicability of the exculpatory clause to the pre-lease occupancy period.
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Join FLexlaw to unlock all legal intelligenceOn November 1, 1972, Esther and Burton Tax leased an apartment from Lester Keiser with a written lease containing an exculpatory clause waiving claims…
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DOWNEY, Judge.
On November 1, 1972, appellants as lessees and appellee Keiser as lessor entered into a written lease for an apartment in appellee’s building. The lease contained an exculpatory provision wherein the tenants waived any claim against the landlord for negligence arising out of the defective condition of the premises. Although the term of the written lease was to begin December 1, 1972, appellants entered into possession of the apartment on November 21, 1972, and Mrs. Tax promptly injured herself by falling over an allegedly improperly lighted step.
By amended answer appellees affirmatively pleaded that the exculpatory clause of the written lease constituted an absolute defense. Appellants did not reply to said defense, and upon appellees’ motion the trial court granted appellees a summary judgment.1
The record before the trial court reflects that the written lease was not effective on its face until December 1, 1972. The record is silent as to whether there was some other agreement between the parties covering the period between November 21, 1972, and December 1, 1972, which could have rendered the exculpatory clause inapplicable. Thus there may well be a genuine issue of material fact existing between the parties hereto. However, appellants did not reply to the affirmative defense as they were required to do by Rule 1.100(a) RCP. Therefore entry of the summary judgment was appropriate.
The error which we perceive came about when the trial court did not allow appellants to amend their pleadings by way of a reply to set forth facts which the record indicates may be available to avoid appellees’ affirmative defense. We believe the record before the trial court when the motion for summary judgment was heard required appellants be afforded that opportunity.
Accordingly, the entry of the summary judgment for appellees is affirmed. However, this affirmance is without prejudice to the plaintiff-appellants within a time to be set by the trial court, to move for leave to file a reply, if they are able, to the defendant-appellees’ affirmative defense. Roberts v. Braynon, Fla.1956, 90 So. 2d 623; Gold Coast Crane Service, Inc. v. Watier, Fla.1971, 257 So. 2d 249.
It is so ordered.
WALDEN, C. J„ and LEE, THOMAS E., Associate Judge, concur. . Section 83.47 F.S.1973 became effective July 1,1973.
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Eskell H. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981)…uired. Consequently, where, as here, the plaintiff does not seek to avoid the substantive allegation of the defendant’s affirmative defense, he need not file, indeed, is precluded by the rules from filing, a reply. The wife relies on Tax v. Reiser, 328 So. 2d 517 (Fla. 4th DCA 1976), in which the plaintiffs filed a personal injury action resulting from a fall on leased premises. By amended answer the defendants affirmatively alleged that the exculpatory clause of the written lease constituted an absolute def…
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Foliage Corp. OF Fla., Inc. v. Watson, 381 So. 2d 356 (Fla. 5th DCA 1980)…ibed by the party or his attorney against whom it is alleged . . Doral Country Club, Inc. v. Curcie Brothers, Inc., 174 So. 2d 749 (Fla. 3d DCA 1965). . Fla.R.Civ.P. 1.100(a); Sorensen v. Eshelman, 202 So. 2d 597 (Fla. 3d DCA 1967); Tax v. Keiser, 328 So. 2d 517 (Fla. 4th DCA 1976). . The instruction was as follows: It is your duty to determine and assess the damages which resulted from the removal of the stock plants which is the difference in the market value of the leased property immediately before an…
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Robert Reno, M.D. v. Adventist Health Systems/Sunbelt, Inc., 516 So. 2d 63 (Fla. 2d DCA 1987)…. The notice of hearing did not fulfill the requirements of Florida Rule of Civil Procedure 1.510(c). Reversed and remanded for proceedings consistent herewith. SCHEB, A.C.J., and FRANK, J., concur. . To the extent that language in Tax v. Reiser, 328 So. 2d 517 (Fla. 4th DCA 1976), may be taken to the contrary, we conclude that that ease does not accurately reflect the precepts of Moore which Tax did not cite.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956)
- Gold Coast Crane Serv., Inc. v. Watier, 257 So. 2d 249 (Fla. 1971)