ANNETTE MILLER, APPELLANT,
v.
WILLIAM J. SMITH ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a reply to affirmative defenses is only required when new matter is asserted to avoid the defense, not for the mere assertion of affirmative defenses.
Plaintiff failed to file a reply to defendants' affirmative defenses within 20 days. The trial court granted defendants' motion for judgment on the pl…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse New Matter cases and more on FLexlaw
[*1022] PER CURIAM.
Upon review of the briefs, record on appeal and oral argument, and in light of the recent decision of the Supreme Court of Florida in Moore Meats, Inc. v. Strawn, in & for Seminole Cty., 313 So. 2d 660 (Fla.1975), we are of the opinion that the order granting defendants’ motion for judgment on the pleadings should be vacated and set aside.
A review of the judgment below reflects that it was predicated primarily upon plaintiff’s failure to file, within 20 days, (see Rule 1.140(a), Fla.R.Civ.P.) a reply to affirmative defenses raised by the defendants. According to the holding in Moore, it is only when “new matter” is sought to be asserted to avoid the affirmative defense that a reply is required; otherwise, the mere assertion of affirmative defenses does not require a responsive pleading for such affirmative defenses to be taken as denied.
In light of the circumstance that the pleadings reveal that there are issues of fact to be resolved and in light of the principles pertaining to the disposition of a motion for judgment on the pleadings, the appealed order was erroneous. Williams v. Howard, 329 So. 2d 277 (Fla.1976); Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975).
It is unnecessary for us to consider the other contentions raised by the plaintiff nor should our disposition herein be construed as passing upon the merits of any summary disposition. The final order granting motion for judgment on the pleadings is vacated and set aside and the cause remanded for further proceedings consistent herewith.
MAGER, C. J., CROSS, J., and JOANOS, JAMES E., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Eskell H. Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981)…62. The distinction between denial and avoidance and the interpretation of the rules made by Mr. Trawick and the Moore Meats court have been followed in several cases, e. g., Equibank v. Penland, 344 So. 2d 629 (Fla. 1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977); Pickard v. Miggins, 311 So. 2d 686 (Fla. 3d DCA 1975), and we are in accord with all of the foregoing authorities. Under the holding in Moore, it is only when “new matter” is sought to be asserted to avoid the affirmative defen…
-
HERTZ Commercial Leasing Corp. v. Seebeck, 399 So. 2d 1110 (Fla. 5th DCA 1981)…atic denial of every allegation of an affirmative defense is provided by Florida Rule of Civil Procedure 1.110(e). Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Equibank, N.A. v. Penland, 344 So. 2d 629 (Fla.1st DCA 1977); Miller v. Smith, 341 So. 2d 1021 (Fla. 4th DCA 1977). Under Rule 1.100(a) a reply is required only if the pleader wishes to avoid the affirmative defense. A reply is activated only by an affirmative defense that can be avoided. Stated differently, a reply pleads an affirmative def…
Authorities Cited
- J. H. "Jim" Williams v. Howard, 329 So. 2d 277 (Fla. 1976)
- Wittington Condo. Apts., Inc. v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975)
- Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla. 1975)