JOE LEVIN AND DOROTHY LEVIN D/B/A CREATIVE TILE DESIGN CO., APPELLANTS,
v.
ALBERT S. KHOURI AND MARY KHOURI, HIS WIFE, D/B/A CONTINENTAL PLAZA, APPELLEES
JOE LEVIN AND DOROTHY LEVIN D/B/A CREATIVE TILE DESIGN CO., APPELLANTS,
ALBERT S. KHOURI AND MARY KHOURI, HIS WIFE, D/B/A CONTINENTAL PLAZA, APPELLEES
337 So. 2d 995
Florida District Court of Appeal, Fourth District (1976)
Negative Treatment
Cited by 8 cases
Opinion of the Court
PER CURIAM.
AFFIRMED.
WALDEN, C. J., and ALDERMAN, J., concur.
MAGER, J., dissents, with opinion.
Dissent
MAGER, Judge
(dissenting):
In my opinion a genuine issue of material fact exists with respect to the proposition of whether the consent of the lessor (appel-lees) to a proposed use (and assignment) of the leased premises was unreasonably withheld. It appears to me that the language contained in the lease was, as a matter of law, sufficiently broad so as to permit the lessee (appellants) to make such other uses of the leased premises as might be consented to by the lessor. Hence the issue of material fact concerning whether such consent was unreasonably withheld. I would therefore reverse to permit a trial on the merits.
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Cong. Park Off. Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So. 3d 602 (Fla. 4th DCA 2013)…t “a party shall set forth affirmatively ... any ... matter constituting an avoidance or affirmative defense.” Application of this rule means “that affirmative defenses must be pleaded or they are considered waived.” Kersey v. City of Riviera Beach, 337 So. 2d 995, 997 (Fla. 4th DCA 1976) (citations omitted); see also Fla. R. Civ. P. 1.140(b) (“Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading[.]”). In this regard, lack of standing and fraud are affi…
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Ohio Cas. Ins. Co. v. MRK Constr., Inc., 602 So. 2d 976 (Fla. 2d DCA 1992)…were so inclined, we cannot at this time order the court to enter a verdict in its behalf. We, accordingly, reverse and remand for a new trial. See Freshwater v. Vetter, 511 So. 2d 1114 (Fla. 2d DCA 1987); Bachanov; Kersey v. City of Riviera Beach, 337 So. 2d 995 (Fla. 4th DCA 1976). Upon remand, MRK should be allowed to amend its complaint and Ohio Casualty must be afforded an opportunity to respond to that complaint and have an opportunity to prepare its defense. Reversed and remanded with instructions.…
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Langford v. McCORMICK, 552 So. 2d 964 (Fla. 1st DCA 1989)…ive defense at any point in the proceedings. He never attempted to amend the pleadings to raise this issue either before or during trial. It is well settled that an affirmative defense must be pleaded or it is waived. Kersey v. City of Rivera Beach, 337 So. 2d 995 (Fla. 4th DCA 1976); Fla.R.Civ.P. 1.140(h). However, if the parties try an affirmative defense by express or implied consent, it will be treated as if it was raised in the pleadings. Garrett v. Oak Hall Club, 118 So. 2d 633 (Fla.1960); Fla.R.Civ.P.…
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